                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              October 20, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
GARFIELD E. HATFIELD,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0798 (BOR Appeal No. 2048061)
                   (Claim No. 2010113189)

ROCKHOUSE CREEK DEVELOPMENT, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Garfield E. Hatfield, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Rockhouse Creek Development, LLC,
by Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 5, 2013, in which
the Board affirmed a January 2, 2013, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s August 29, 2011, decision
which granted Mr. Hatfield a 5% 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. Hatfield, a shuttlecar operator, was injured in the course of his employment on
November 4, 2009, while shoveling coal. The claim was held compensable for other affections
of the shoulder; bicipital tenosynovitis; and sprain/strain of the lumbosacral spine, rotator cuff,
pelvis, and lumbar region. As a result of his compensable injury, Mr. Hatfield was found to have
a small partial thickness tear of the rotator cuff. He underwent surgery to treat the condition on
May 7, 2010. Progress notes from his surgeon, Stanley Tao, M.D., indicate that by January 6,

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2011, Mr. Hatfield’s tear was stable and he had no restrictions. Continued pain in the left
shoulder was determined to likely be chronic in nature.

       Mr. Hatfield underwent three independent medical evaluations in order to determine the
amount of permanent impairment sustained as a result of the compensable injury. The first
evaluation was performed by Prasadarao Mukkamala, M.D., on November 2, 2010. Dr.
Mukkamala noted that Mr. Hatfield had returned to work with no restrictions. He also noted that
Mr. Hatfield reported numerous prior lower back injuries and permanent partial disability
awards. Dr. Mukkamala diagnosed lumbar sprain and status post arthroscopic rotator cuff repair,
acromioplasty, and bursectomy of the left shoulder. He found Mr. Hatfield to be at maximum
medical improvement and assessed 5% whole person impairment for the left shoulder and no
additional impairment for the lumbar spine.

       Bruce Guberman, M.D., performed an independent medical evaluation on November 15,
2011. He also noted that Mr. Hatfield had three previous lower back injuries. He diagnosed
chronic post-traumatic strain of the left shoulder and post-traumatic acute and chronic
lumbosacral strain. He opined that Mr. Hatfield had reached maximum medical improvement
and assessed 8% left shoulder impairment. He stated that Mr. Hatfield had already been fully
compensated for his lumbar spine impairment by prior permanent partial disability awards.

       The final independent medical evaluation was performed by Bill Hennessey, M.D., on
August 20, 2012. Dr. Hennessey noted that Mr. Hatfield underwent left shoulder surgery that
repaired a torn rotator cuff and treated osteoarthritis which eliminated his impingement
syndrome. At the time of the evaluation, Mr. Hatfield was no longer receiving medical treatment
for his compensable injuries. Dr. Hennessey opined that he had reached maximum medical
improvement and assessed 2% impairment for the left shoulder and no additional impairment for
the lower back.

        The claims administrator granted Mr. Hatfield a 5% permanent partial disability award
for the left shoulder on August 29, 2011. The Office of Judges affirmed the decision in its
January 2, 2013, Order. The Office of Judges found that Mr. Hatfield was examined by three
physicians, all of whom determined that he had sustained no additional lumbar spine impairment
after taking into consideration pre-existing lumbar spine injuries and prior permanent partial
disability awards. The Office of Judges therefore held that Mr. Hatfield was entitled to no
additional permanent partial disability award for the lumbar spine.

        In regard to the left shoulder, the Office of Judges found that Dr. Hennessey’s report was
not as reliable as the other independent medical evaluations of record. Dr. Hennessey found no
range of motion impairment for internal and external rotation. This was determined to be at odds
with the findings of Drs. Mukkamala and Guberman who both found that Mr. Hatfield had 2%
upper extremity impairment for internal rotation and 1% upper extremity impairment for external
rotation. The Office of Judges stated that this did not render the other components of Dr.
Hennessey’s impairment findings to be unreliable. Between the reports of Dr. Mukkamala and
Dr. Guberman, Dr. Mukkamala’s report was found to be the most reliable because it was in
accord with the evidentiary record. The Office of Judges determined that since October of 2010,
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Mr. Hatfield has had fifty degrees of extension in his left shoulder which correlates to 0% upper
extremity impairment as noted in Dr. Tao’s treatment notes. Dr. Mukkamala also found fifty
degrees of extension in his independent medical evaluation, and Dr. Hennessey found full range
of motion. Dr. Guberman was found to be the only physician of record after October of 2010 to
find an impairment for extension of the left shoulder. Furthermore, Dr. Guberman’s finding of
4% upper extremity impairment for abduction was found to be inconsistent with the evidence of
record. Dr. Mukkamala reported 2% upper extremity impairment for abduction and Dr.
Hennessey found 1% impairment for the same. Dr. Guberman’s finding of 4% was determined to
be excessive in light of the evidentiary record.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 5, 2013, decision. On appeal, Mr. Hatfield argues that
the independent medical evaluations of record are of equal evidentiary weight and the matter
should therefore be resolved in his favor per the report of Dr. Guberman. Rockhouse Creek
Development, LLC, asserts that Dr. Guberman’s left shoulder findings were clearly at odds with
the other evaluations of record as well as evidence from Mr. Hatfield’s physical therapist and
treating physician.

      After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidentiary record indicates that Mr. Hatfield is entitled to a 5%
permanent partial disability award for his compensable injury.

        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: October 20, 2014

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




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