                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                  April 23, 2013

                                                                             RORY L. PERRY II, CLERK

WILLIAM MICHAEL REESE,                                                     SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 12-0852	 (BOR Appeal No. 2046758)
                   (Claim No. 2009086277)

WEST VIRGINIA DIVISION OF
ENVIRONMENTAL PROTECTION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner William Michael Reese, by Patrick Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The West Virginia Division of
Environmental Protection, by H. Toney Stroud, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated June 22, 2012, in which
the Board affirmed a December 15, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 10, 2009,
decision insofar as it granted Mr. Reese a 10% permanent partial disability award for the bilateral
knee contusion and right wrist, and also affirmed its finding that Mr. Reese has been fully
compensated for the lumbar and cervical sprains through prior permanent partial disability
awards. The Office of Judges reversed the claims administrator’s decision insofar as it granted
Mr. Reese no permanent partial disability award for the thoracic sprain. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        Mr. Reese sustained multiple injuries when he slipped and fell at work on April 1, 2009.
The claim has been held compensable for contusion of right wrist, contusion of knee (bilateral),
thoracic sprain, lumbar sprain, and cervical sprain. Mr. Reese has undergone three independent
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medical evaluations to determine the amount of permanent impairment resulting from these
injuries. On August 25, 2009, Dr. Mukkamala examined Mr. Reese. He recommended a 2%
permanent partial disability award for the right wrist contusion; a 4% permanent partial disability
award for both the right and left knee contusions; a 0% permanent partial disability award for the
thoracic sprain; and an additional 0% permanent partial disability award for both the lumbar and
cervical sprains, based on a finding that Mr. Reese was fully compensated for these injuries
through prior permanent partial disability awards. On June 15, 2010, Dr. Guberman examined
Mr. Reese. He recommended an 8% permanent partial disability award for the right wrist
contusion; a 4% permanent partial disability award for the left knee contusion and an 8%
permanent partial disability award for the right knee contusion; a 5% permanent partial disability
award for the thoracic sprain; a 10% permanent partial disability award for the lumbar sprain;
and a 7% permanent partial disability award for the cervical sprain. On May 19, 2011, Dr. Bailey
examined Mr. Reese and found that he sustained no permanent impairment as a result of the
April 1, 2009, injury.

        In its Order affirming in part and reversing in part the claims administrator’s November
10, 2009, decision, the Office of Judges held that the claims administrator was correct in granting
Mr. Reese a total of a 10% permanent partial disability award for the bilateral knee contusions
and right wrist contusion, and in finding that he has been fully compensated for the cervical and
lumbar sprains through prior permanent partial disability awards. The Office of Judges further
held that the claims administrator’s failure to grant Mr. Reese a permanent partial disability
award for the thoracic sprain was incorrect, and therefore granted him a 5% permanent partial
disability award for the thoracic sprain. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision of June 22, 2012. Mr. Reese disputes this
finding and asserts that he is entitled to an additional 19% permanent partial disability award
based on the report of Dr. Guberman.

        The Office of Judges found that Mr. Reese is entitled to the 2% permanent partial
disability award for the right wrist contusion granted by the claims administrator, based on the
opinion of Dr. Mukkamala. The Office of Judges noted that Dr. Bailey stated in her report that
her examination of Mr. Reese’s right wrist was not credible; the Office of Judges further found
that Dr. Guberman’s findings with regard to the right wrist were not persuasive. Additionally, the
Office of Judges found that Mr. Reese has been fully compensated for both the cervical sprain
and lumbar sprain through prior permanent partial disability awards, based on the opinion of Dr.
Mukkamala. The Office of Judges then found that Dr. Guberman improperly calculated the
amount of whole person impairment attributable to Mr. Reese’s cervical spine by apportioning
for his prior permanent partial disability award at the incorrect time. The Office of Judges found
that Dr. Guberman committed the same error when calculating Mr. Reese’s lumbar spine
impairment as he did when calculating the amount of permanent impairment attributable to the
cervical spine. In reversing the claims administrator’s decision denying Mr. Reese a permanent
partial disability award for the thoracic sprain and granting him a 5% permanent partial disability
award, the Office of Judges found that the opinion of Dr. Guberman was the most persuasive.
The Office of Judges further found that the record supports Dr. Guberman’s findings because
Mr. Reese has a history of injury to his thoracic spine with non-verifiable radicular symptoms.
We agree with the conclusions of the Office of Judges with regard to the amount of permanent
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impairment attributable to the right wrist contusion, cervical sprain, lumbar sprain, and thoracic
sprain.

        With regard to the bilateral knee contusion, the Office of Judges found that Mr. Reese is
entitled to a 4% permanent partial disability award for each knee based on the opinion of Dr.
Mukkamala. As noted by the Office of Judges, both Dr. Guberman and Dr. Mukkamala
recommended a 4% permanent partial disability award for the left knee; Dr. Bailey was unable to
obtain valid range of motion measurements and recommended a 0% permanent partial disability
award. We agree with the Office of Judges’ conclusion that Mr. Reese is entitled to a 4%
permanent partial disability award for the left knee. With regard to Dr. Guberman’s 8%
permanent partial disability award recommendation for the right knee, the Office of Judges held
that Dr. Guberman’s opinion is not persuasive because the compensable condition is the same for
both knees. However, the fact that both knees have been held compensable for the same
condition does not lead to the conclusion that Mr. Reese must have the same amount of
permanent impairment in each knee. Therefore, Mr. Reese is entitled to the 8% permanent partial
disability award recommended by Dr. Guberman, pursuant to West Virginia Code § 23-4-1g
(2003).

        In summary, the decision of Board of Review is affirmed as to its findings relating to the
right wrist contusion, thoracic sprain, lumbar sprain, cervical sprain, and left knee contusion; the
decision of the Board of Review is reversed as to its findings relating to the right knee contusion.
The case is remanded with instructions to grant an additional 4% permanent partial disability
award for the right knee contusion, for a total permanent partial disability award of 8% for the
right knee contusion.



                                                 Affirmed in part, reversed and remanded in part.



ISSUED: April 23, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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