                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
MATTHEW K. WARD,                                                                September 12, 2016
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 15-0815 (BOR Appeal No. 2050209)
                   (Claim No. 2013012941)

WEST VIRGINIA DIVISION OF HIGHWAYS,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Matthew K. Ward, by Stephen New, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Division of
Highways, by Lisa Warner Hunter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 23, 2015, in which
the Board affirmed a January 29, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 27, 2013, decision
granting Mr. Ward 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. Ward sustained multiple injuries on November 14, 2012, when he was struck by a
motor vehicle during the course of his employment as a flagman. His claim for workers’
compensation benefits was held compensable for multiple left rib fractures, pulmonary
contusions, difficulty breathing, a partially collapsed/punctured lung, a brain contusion/small
subdural hematoma of the right frontal lobe, a liver contusion, a kidney contusion, a cardiac
contusion, retroperitoneal hemorrhage, and an ulnar fracture. Mr. Ward underwent three

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independent medical evaluations for the purpose of determining the amount of whole person
impairment arising from his compensable injuries.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 22,
2013, the findings of which are set forth in a report dated May 23, 2013. Dr. Mukkamala opined
that Mr. Ward sustained 0% whole person impairment as a result of his compensable injuries. On
June 27, 2013, the claims administrator granted Mr. Ward a 0% permanent partial disability
award based upon Dr. Mukkamala’s independent medical evaluation.

        Bruce Guberman, M.D., performed an independent medical evaluation on February 11,
2014, and authored a report memorializing his findings on the same date. He opined that a
cervical sprain, post-traumatic seizures, and post-concussion syndrome should be added as
compensable components of the claim.1 Dr. Guberman also opined that Mr. Ward suffers from
residual headaches attributable to neck pain. He further opined that Mr. Ward’s ongoing neck
pain is related to the November 14, 2012, injury. Dr. Guberman opined that Mr. Ward sustained
6% whole person impairment as a result of range of motion abnormalities in the cervical spine.2
Additionally, Dr. Guberman opined that Mr. Ward sustained 6% whole person impairment as a
result of the injury to his head. He did not attribute any degree of permanent impairment to the
remaining compensable diagnoses.

        Finally, Christopher Martin, M.D., performed an independent medical evaluation on
September 22, 2014, and also authored a report memorializing his findings on the same date. Dr.
Martin stated that he disagrees with Dr. Guberman’s recommendation to add a cervical strain as
a compensable diagnosis. He noted that upon examination, Mr. Ward’s cervical spine was non-
tender and further noted that the record does not indicate that Mr. Ward consistently complained
of neck pain. Dr. Martin then opined that he is unable to make a diagnosis of post-concussion
syndrome. Additionally, he opined that there is no basis to conclude that Mr. Ward’s complaints
of headaches are either post-traumatic or a source of impairment. With regard to the
compensable injuries, Dr. Martin opined that Mr. Ward sustained 0% whole person impairment.

        In its Order affirming the June 27, 2013, claims administrator’s decision, the Office of
Judges held that a preponderance of the evidence demonstrates that Mr. Ward did not sustain any
permanent impairment as a result of his compensable injuries. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated July 23, 2015. On appeal,
Mr. Ward asserts that he is entitled to a 6% permanent partial disability award for range of
motion abnormalities in the cervical spine and a 6% permanent partial disability award for
injuries to his head, for a total award of 12%, per the opinion of Dr. Guberman.

        The Office of Judges noted that the cervical spine is not a compensable body part and
therefore concluded that Mr. Ward is not entitled to a permanent partial disability award for any

1
  The record does not reflect that any of these diagnoses were ever added as compensable

components of the claim.

2
  Neither party introduced any evidence indicating that the cervical spine is a compensable body

part.

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permanent impairment arising from the cervical spine. Regarding the injury to Mr. Ward’s head,
the Office of Judges found that a preponderance of the evidence does not support a reversal of
the claims administrator’s decision granting him a 0% permanent partial disability award.

        We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. On appeal, Mr. Ward has requested that he receive a permanent partial
disability award for range of motion impairments in the cervical spine, as recommended by Dr.
Guberman. However, as has been repeatedly noted, the cervical spine is not a compensable body
part. In fact, even Dr. Guberman acknowledged that the cervical spine is not a compensable
component of the claim. Because the cervical spine is not a compensable component of the
claim, Mr. Ward is not entitled to a permanent partial disability award for this body part. Mr.
Ward has also requested that he receive a permanent partial disability award arising from his
head injury. However, only Dr. Guberman recommended that Mr. Ward receive a permanent
partial disability award for the injuries to his head. Both Dr. Mukkamala and Dr. Martin found
that all of Mr. Ward’s compensable injuries, including his compensable head injury, have
resolved without any degree of permanent impairment.

        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: September 12, 2016

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

DISSENTING:
Chief Justice Menis E. Ketchum




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