                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              December 30, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JOHN WILLIAMS,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0856 (BOR Appeal No. 2049332)
                   (Claim No. 2012026865)

ALEX ENERGY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner John Williams, by Anne L. Wandling, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alex Energy, Inc., by Sean Harter, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 7, 2014, in
which the Board affirmed a March 7, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 3, 2013,
decision to grant a 0% permanent partial disability award. 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 and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Mr. Williams, a bulldozer operator for Alex Energy, Inc., was working on February 1,
2012, when his bulldozer slipped off a large rock, hit the ground, and severely jarred the cab. Mr.
Williams’s neck and upper body were injured in the process. On December 13, 2012, an
independent medical evaluation from Marsha Bailey, M.D., was made available. She concluded
that Mr. Williams had reached his maximum degree of medical improvement and suffered no
permanent impairment. Dr. Bailey found that Mr. Williams’s range of motion measurements for
both his cervical spine and thoracic spine were all invalid because they were pain restricted. She
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also found that Mr. Williams had no soft tissue swelling or palpable spasm about his cervical or
thoracic spine. Dr. Bailey opined Mr. Williams had a diagnosis of chronic cervical and thoracic
sprain without true radiculopathy. Dr. Bailey placed Mr. Williams in Category I of West Virginia
Code of State Rules § 85-20-D (2006), which resulted in no ratable impairment. Dr. Bailey also
placed Mr. Williams in Category I of West Virginia Code of State Rules § 85-20-E (2006),
which also resulted in no ratable impairment. Overall, she did not recommend any impairment.
On January 3, 2013, based upon Dr. Bailey’s report, the claims administrator granted Mr.
Williams a 0% permanent partial disability award. Mr. Williams protested.

        On March 7, 2013, Mr. Williams was involved in a non-work-related motor vehicle
accident. He complained of neck pain, upper and lower back pain, as well as pain in both
shoulders. Mr. Williams was examined and diagnosed with myofascial cervical strain, dorsal
myofascial strain, myofascial lumbar strain, and a shoulder injury on both the right and left. On
May 13, 2013, an independent medical evaluation from Bruce Guberman, M.D., was made
available. Dr. Guberman diagnosed acute and chronic cervical spine strain, post-traumatic; acute
and chronic thoracic spine strain, post-traumatic; and a disc herniation at T7-T8 and T11-T12.
He concluded that Mr. Williams had reached his maximum degree of medical improvement. Dr.
Guberman placed Mr. Williams in Cervical Category II-B of Table 75 of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) for 4% whole
person impairment. He also placed Mr. Williams in Thoracic Category II-C of Table 75 of the
American Medical Association’s Guides, which equated to 3% whole person impairment. Dr.
Guberman further opined that because of Mr. Williams’s placement in Thoracic Category II-F of
the American Medical Association’s Guides for a second disc herniation, he was entitled to an
additional 1% permanent partial disability. Dr. Guberman also found 4% whole person
impairment based upon range of motion abnormalities of the cervical spine. He also found 2%
whole person impairment for range of motion abnormalities in the thoracic spine. Dr. Guberman
then placed Mr. Williams in Category II of West Virginia Code of State Rules § 85-20-D for the
thoracic spine. He also placed Mr. Williams in Category II of West Virginia Code of State Rules
§ 85-20-E for the cervical spine. Overall he recommended 14% whole person impairment.

        On November 13, 2013, an independent medical evaluation from Prasadarao Mukkamala,
M.D., was made available. Mr. Williams reported he was still experiencing neck pain with
radiation to the right arm and numbness of the right hand. Dr. Mukkamala diagnosed cervical
sprain and thoracic sprain. Dr. Mukkamala opined that Mr. Williams was at his maximum degree
of medical improvement and suffered no whole person impairment. Dr. Mukkamala found that
the findings on the MRI of the cervical spine were naturally occurring, degenerative in nature,
and not causally related to the subject injury. Dr. Mukkamala opined that Dr. Guberman’s
finding of 14 % whole person impairment were exaggerated.

       The Office of Judges found that Mr. Williams was not entitled to any more than a 0%
permanent partial disability award. The Office of Judges inferred that Dr. Guberman did not have
an accurate medical history of Mr. Williams’s cervical and thoracic spine at the time of his
examination. The Office of Judges found that approximately two months before Dr. Guberman’s
evaluation Mr. Williams was involved in a motor vehicle accident which caused him to complain
of neck, upper, and lower back pain, as well as pain in both shoulders. After the accident, which
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was not work related, the Office of Judges reviewed the report that showed Mr. Williams
suffered a myofascial cervical strain, dorsal myofascial strain, myofascial lumbar strain, and a
shoulder injury to both the right and left sides. The Office of Judges concluded that Dr.
Guberman was unaware of the accident because he failed to mention it in his report. The Office
of Judges found that when Mr. Williams was examined by Dr. Mukkamala on November 13,
2013, both Mr. Williams’s cervical range of motion and thoracic range of motion had improved.
The Office of Judges also noted that Dr. Mukkamala’s examination was the most recent
independent medical evaluation of record. The Office of Judges determined that the reports of
Dr. Bailey and Dr. Mukkamala were more persuasive and consistent with the evidence of record
than Dr. Guberman’s report. The Office of Judges affirmed the claims administrator’s decision to
grant a 0% permanent partial disability award. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        We agree with the decisions of the claims administrator, the Office of Judges, and the
Board of Review. Dr. Guberman’s evaluation is not as persuasive as Dr. Mukkamala’s report.
Dr. Guberman was in the worst position to evaluate Mr. Williams’s impairment because he
examined Mr. Williams directly after his non-work-related automobile accident. Dr. Guberman,
apparently, was unaware of the accident. Dr. Mukkamala examined Mr. Williams much later,
after the cervical and thoracic problems had ample time to stabilize. Dr. Mukkamala’s range of
motion measurements was markedly better than Dr. Guberman’s measurements. Because Dr.
Mukkamala’s evaluation more adequately addressed prior non-work-related injuries, it was not
in error for the Office of Judges and Board of Review to rely on his opinion.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                        Affirmed.

ISSUED: December 30, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum

Justice Brent D. Benjamin, disqualified



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