                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                July 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES LILLY,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0979 (BOR Appeal No. 2049311)
                   (Claim No. 2012011213)

ALEX ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner James Lilly, by Reginald D. Henry, 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 26, 2014, in
which the Board affirmed a March 21, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s May 1, 2012,
decision granting Mr. Lilly a 7% permanent partial disability award. The Office of Judges
instead granted him 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. Lilly, a coal miner, injured his left foot and ankle on September 27, 2011, when he
slipped and fell. The claim was held compensable for sprain/strain of the ankle and foot. Mr.
Lilly was treated by Steven Vess, D.O., for the compensable injury. Dr. Vess reviewed x-rays
and found a tremendous amount of osteoarthritis in the ankle and old avulsion fractures, but
nothing he would deem to be new. He opined that Mr. Lilly probably suffered a sprain/strain of
the left ankle. On December 23, 2011, Dr. Vess found that Mr. Lilly had weakness in his left
                                                1
foot. He also had mild stress fractures of the Achilles and tremendous weakness in the anterior
tibula secondary to an injury to the peroneal nerve. On April 10, 2012, Dr. Vess’s treatment note
indicates that an EMG showed peroneal palsy of the left lower extremity secondary to the work-
related injury, and an ultrasound showed extensive left deep vein thrombosis. He asserted that
both conditions were the result of the compensable injury.

        An independent medical evaluation was performed by Joseph Grady, M.D., on January 5,
2012. Dr. Grady diagnosed chronic left lower leg and foot paresthesia of uncertain etiology and
left foot and ankle sprain superimposed on diffuse osteoarthritic changes with a reported history
of pre-existing medical and lateral malleoli avulsion fractures. He opined that Mr. Lilly’s current
symptoms are not the result of the sprain/strain injury. He stated that he has evidence of atrophy
of the left lower extremity and some form of a neurologic abnormality or peripheral nerve
involvement. He opined that an EMG could be done to further investigate the nerve abnormality,
but it would not be related to the compensable sprain/strain. In a supplemental report, Dr. Grady
clarified that Mr. Lilly had reached maximum medical improvement for his compensable left
ankle/foot sprain/strain. He stated that the current symptoms are not the result of the sprain/strain
and are more suggestive of a neurologic abnormality. He assessed 0% impairment for the
compensable injury.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation on February
22, 2012, in which he diagnosed a soft tissue injury to the left ankle and foot with clinical
evidence of peroneal nerve palsy. He opined that Mr. Lilly was not at maximum medical
improvement but provided an impairment rating. He stated that the only reason he found Mr.
Lilly was not at maximum medical improvement was so he could have an EMG and nerve
conduction study. He determined that Mr. Lilly had range of motion limitations; however, they
were due to the peroneal nerve injury so range of motion measurements were therefore not
appropriate to use for an impairment rating. He assessed 7% whole person impairment for
peroneal nerve injury, muscle weakness, and sensory deficits. He disagreed with Dr. Grady’s
conclusion that the peroneal nerve injury was not the result of the compensable injury. Based
upon Dr. Mukkamala’s report, the claims administrator granted Mr. Lilly a 7% permanent partial
disability award on May 1, 2012.

       Dean Steinman, D.O., performed a utilization review on July 8, 2012, in order to
determine if deep vein thrombosis and peroneal nerve palsy should be added to the claim. He
opined that though Mr. Lilly had developed left peroneal nerve pathology since his September
27, 2011, injury, the weight of the evidence does not support the conclusion that left peroneal
nerve injury or deep vein thrombosis are related to the compensable ankle sprain. He
recommended the conditions not be added to the claim. The claims administrator thereafter
denied a request to add peroneal palsy and deep vein thrombosis to the claim. The Office of
Judges and Board of Review subsequently affirmed the decision.

       A third independent medical evaluation was performed by Robert Walker, M.D., on
January 8, 2013. Dr. Walker found evidence of injury to the left ankle, hind foot, toes, and
peroneal nerve. He provided two methods of impairment calculation. Using range of motion, he
found 15% impairment for the left ankle, 10% for the hind foot, 5% for the great toe, and 5% for
                                                 2
the lesser toes for a total of 32% lower extremity impairment. That converted to 13% whole
person impairment. He also rated Mr. Lilly’s left peroneal nerve injury using Table 39 of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993). He assessed 27% lower extremity impairment for the motor aspect of the injury and 5%
for sensory defects, which combined and converted to 15% whole person impairment.

        Jerry Scott, M.D., then performed an independent medical evaluation in which he
determined that Mr. Lilly suffered a sprain/strain of the left foot and ankle superimposed on
severe pre-existing degenerative disease. He noted that Mr. Lilly had peroneal nerve
abnormalities in both lower extremities, worse on the left. He stated that he had a history of at
least two prior significant left ankle/foot traumas. He also has diabetes, which Dr. Scott
suspected contributed to the peripheral nervous system abnormalities. Dr. Scott found the range
of motion measurements to be invalid because of inconsistent performance and pain limitations.
Mr. Lilly reported that at times he cannot move either ankle due to swelling. Dr. Scott opined
that the presence of symptoms in both legs indicates the symptoms are not the result of the
compensable left ankle sprain/strain. He therefore assessed 0% whole person impairment for the
compensable sprain/strain. He opined that Dr. Walker’s 15% impairment recommendation was
incorrect. He stated that Dr. Walker did not know or did not take into account Mr. Lilly’s pre­
existing history. He also failed to address the right side symptoms. Dr. Scott also found that Dr.
Walker’s range of motion measurements were not reliable as Mr. Lilly gave inconsistent efforts
throughout his evaluation.

        In a November 25, 2013, supplemental report, Dr. Mukkamala diagnosed left ankle and
foot sprain. He found that Mr. Lilly had a history of left ankle and left foot injury prior to the
compensable injury. He stated that his previous impairment recommendation was made without
the knowledge of pre-existing injuries and degenerative changes. With the additional
information, Dr. Mukkamala concluded that the claim was properly denied for the addition of
peroneal palsy and deep vein thrombosis. He assessed 0% impairment for the compensable
sprain/strain. He opined that Dr. Walker’s finding of 15% impairment was incorrect because Dr.
Walker improperly included the non-compensable, pre-existing peroneal nerve condition in his
assessment.

        The Office of Judges reversed the claims administrator’s grant of a 7% permanent partial
disability award and instead granted Mr. Lilly a 0% permanent partial disability award in its
March 21, 2014, Order. It found that Mr. Lilly clearly had substantial left ankle injuries prior to
his compensable injury. The Office of Judges previously determined that the peroneal nerve
injury is not a compensable component of the claim and the Board of Review affirmed the Order.
The Office of Judges determined that the claims administrator’s decision in the issue at bar was
based upon Dr. Mukkamala’s finding of 7% impairment. His assessment at that time was based
upon the peroneal nerve injury, which he believed was related to the compensable injury. In a
subsequent supplemental report, he stated that, based upon additional information, his previous
assessment was incorrect and Mr. Lilly has 0% impairment for the compensable injury. The
Office of Judges noted that Dr. Scott had previously arrived at the same assessment of 0%
impairment.

                                                3
        The Office of Judges stated that Dr. Walker’s report suggested either 13% or 15%
impairment for the compensable injury. As Drs. Scott and Mukkamala noted, his report has
several problems. First, he assumed that peroneal nerve injury is a compensable component of
the claim. Because that is not the case, his recommendation of 15% impairment cannot be
adopted. Dr. Walker also made a recommendation of 13% whole person impairment based on
range of motion deficits. The Office of Judges concluded, however, that he did not attempt to
apportion the impairment for Mr. Lilly’s pre-existing injuries. Finally, Dr. Walker’s range of
motion measurements were not corroborated by the remainder of the record, and his report was
therefore not found to be credible. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on August 26, 2014.

        On appeal, Mr. Lilly argues that Dr. Walker provided two different methods of
calculating impairment and separated the musculoskeletal damage from the peroneal nerve
damage, arriving at an assessment of 13% musculoskeletal impairment. Mr. Lilly also asserts
that Dr. Vess reviewed diagnostic testing and found nerve damage. Alex Energy, Inc., argues
that three of the four evaluating physicians of record found that Mr. Lilly has 0% permanent
partial disability as a result of the compensable injury. It asserts that the claim has only been held
compensable for sprains/strains of the left ankle and foot, and the nerve impairment was not the
result of the injury. It further argues that Drs. Scott and Mukkamala were the only physicians of
record made aware of Mr. Lilly’s pre-existing left foot/ankle conditions, and their opinions are
therefore the most reliable of record.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The claims administrator’s award was based on Dr. Mukkamala’s first
evaluation. He subsequently recanted his impairment recommendation upon the receipt of
additional evidence showing Mr. Lilly had substantial pre-existing degenerative changes and
prior injuries. Dr. Scott also found that Mr. Lilly had 0% impairment. Mr. Lilly bases his appeal
on Dr. Walker’s report. However, his report is unreliable because he rated a non-compensable
condition, failed to apportion for pre-existing injuries and conditions, and his results were not
corroborated by the evidentiary record.

        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: July 9, 2015

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

                                                  4
DISSENTING:
Justice Menis E. Ketchum

Justice Brent D. Benjamin, disqualified




                                          5
