                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                    FILED
RUTH RICHARDS,
                                                                                 April 25, 2019
Claimant Below, Petitioner                                                     EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
vs.)   No. 18-0619 (BOR Appeal No. 2052721)
                   (Claim No. 2017010065)

AMERICAN MEDICAL FACILITIES MANAGEMENT,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Ruth Richards, by William Gerwig III, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. American Medical Facilities
Management, by Steven Wellman, its attorney, filed a timely response.

        The issue on appeal is permanent partial disability. The claims administrator granted a 1%
permanent partial disability award on March 22, 2017. The Office of Judges affirmed the decision
in its March 14, 2018, Order. The Order was affirmed by the Board of Review on July 2, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.

         Ms. Richards, a certified nursing assistant, was injured in the course of her employment on
October 13, 2016, when she fell. A cervical CT scan the following day noted that it was performed
due to Ms. Richards falling and hitting her head and neck the day before. The CT showed mild
degenerative changes but no acute findings. The claim was held compensable for fracture of the
right fibula, head injury, and cervical strain.

        Ms. Richards was treated by Frederick Pollock, M.D., and on December 27, 2016, he noted
that she was there for follow up for her broken ankle. She had full range of motion in the ankle,
and x-rays showed that the fibula fracture healed well. Dr. Pollack recommended two more weeks
of physical therapy. On January 12, 2017, Dr. Pollock again noted full range of motion and
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recommended she continue physical therapy. In a February 3, 2017, treatment note, Aimee Gue,
FNP-C, noted that Ms. Richards reported ankle pain since October. She stated that she had pain
and swelling daily in her ankle. She had not been able to return to work. Ms. Gue prescribed a tall
boot.

        On March 17, 2017, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation in which he noted that Ms. Richards was released to return to work by Dr. Pollock but
was still under the care of Dr. Knapp. He noted the compensable conditions as right fibula fracture,
head injury, and cervical sprain. Dr. Mukkamala determined that Ms. Richards had reached
maximum medical improvement. Using the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed 1993), Dr. Mukkamala assessed 0% impairment for
the head injury. He found 5% impairment for the cervical spine using range of motion. He placed
Ms. Richards in Cervical Category I of West Virginia Code of State Rules § 85-20-
E (2006) which allows for 0% impairment and adjusted the assessment accordingly. Dr.
Mukkamala found that Ms. Richards had mild limitation of hind foot range of motion. This
amounted to 1% impairment for the right ankle. His total assessment was therefore 1% impairment.
The claims administrator granted a 1% permanent partial disability award based on his assessment
on March 22, 2017.

        Ms. Richards was treated by James Thomas, M.D., on April 26, 2017. Dr. Thomas noted
that she fractured her ankle in October of 2016. X-rays taken in March of 2017 showed good
progressive healing. Ms. Richards reported a very low pain level with standing and walking and
no pain on rest. She had full range of motion of the foot and ankle. Dr. Thomas stated that her
ankle was completely healed.

        On June 8, 2017, Bruce Guberman, M.D., performed an independent medical evaluation
in which he assessed 4% impairment for the right ankle for range of motion abnormalities. For the
cervical spine, he placed Ms. Richards in Category IIB of Table 75 from the American Medical
Association’s Guides for 4% impairment. Cervical range of motion showed 2% impairment. Dr.
Guberman placed Ms. Richards in Cervical Category II from West Virginia Code of State Rules §
85-20-E, which allows for 5-8% impairment. He therefore adjusted the cervical impairment to 8%.
His total recommended impairment for the compensable injury was 12%.

         Marsha Bailey, M.D., performed an independent medical evaluation on November 7, 2017.
She found that Ms. Richards had reached maximum medical improvement. For the cervical sprain,
Dr. Bailey assessed 0% impairment. The cervical range of motion measurements were pain
restricted and not valid. Dr. Bailey stated that Ms. Richards reported no neck pain at the time of
the examination and only some soreness with certain motions. Dr. Bailey placed Ms. Richards in
Cervical Category I from West Virginia Code of State Rules § 85-20-E for 0% impairment. Dr.
Bailey stated that there are thirteen models within the American Medical Association’s Guides for
rating lower extremity impairment but Ms. Richards is not eligible for an impairment under any
of them. Her right ankle range of motion was normal, and Dr. Bailey assessed 0% impairment. She
also found no impairment for the head injury.


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        On March 14, 2018, the Office of Judges affirmed the claims administrator’s grant of a 1%
permanent partial disability award. It found that there are three evaluations of record. Dr.
Mukkamala found 1% impairment, Dr. Guberman found 12%, and Dr. Bailey found 0%. The
Office of Judges found Dr. Guberman’s impairment assessment to be an outlier in regard to
cervical impairment. Ms. Richards has not been treated for a cervical injury. Dr. Bailey found 0%
cervical impairment but her range of motion measurements were invalid. The Office of Judges
relied on Dr. Mukkamala’s assessment in which he found 0% cervical impairment. All three
evaluators of record found 0% impairment for the compensable head injury. For the right ankle,
Drs. Mukkamala and Guberman both found 1% range of motion impairment. Dr. Guberman also
found additional impairment for plantar flexion and dorsiflexion. The Office of Judges found that
Ms. Richards’s right ankle was determined to have normal range of motion by Dr. Pollock on
January 12, 2017, and Dr. Thomas on April 26, 2017. The Office of Judges concluded that Dr.
Guberman’s finding of 12% impairment was not supported by Ms. Richards’s treatment and other
medical records. Dr. Baileys’ report was also found to be less credible because she did not find
valid range of motion measurements. Dr. Mukkamala’s report and finding of 1% impairment was
determined to be the most reliable of record. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on July 2, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The Office of Judges was not wrong to rely on Dr. Mukkamala’s
report. Dr. Guberman’s report found impairment well beyond that of the other evaluators of record,
and his findings are not supported by the evidentiary record. Dr. Bailey’s report failed to find valid
range of motion measurements. Dr. Mukkamala’s report was supported by the evidentiary record
and is therefore the most reliable.

        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: April 25, 2019


CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison



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