                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 3, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BRUCE PAULEY,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1171 (BOR Appeal No. 2048352)
                    (Claim No. 2012001889)


KINGSTON MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Bruce Pauley, by Reginald D. Henry and Rodney A. Skeens, his attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Kinston
Mining, Inc., by Marion E. Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 24, 2013, in
which the Board affirmed an April 12, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 28,
2011, decision granting Mr. Pauley a 3% 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. Pauley worked as a roof bolter for Kingston Mining, Inc. On July 11, 2011, he
sustained an injury to his right hip and back while hanging a ventilation curtain underground.
The claim was held compensable for lumbar sprain. Mr. Pauley filed an application requesting
permanent partial disability.


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        Three independent medical evaluations were performed to determine the amount of
permanent impairment that Mr. Pauley sustained. The first evaluation was performed by
Prasadarao B. Mukkamala, M.D., who recommended 3% impairment for this compensable
injury. The second independent medical evaluation was performed by Bruce A. Guberman,
M.D., and he recommended 25% impairment for this injury based primarily on the lumbar fusion
and the presence of radiculopathy directly related to the July 11, 2011, injury. The final
independent medical evaluation was performed by Marsha Lee Bailey, M.D. She opined that Mr.
Pauley had 5% impairment inclusive of all work-related claims and injuries to date involving the
lower back. The claims administrator granted Mr. Pauley a 3% permanent partial disability
award based on the report of Dr. Mukkamala. The decision noted that Mr. Pauley had previously
received an award of 5% for a 2008 injury.

        The Office of Judges affirmed the claims administrator’s decision and the Board of
Review affirmed the Order of the Office of Judges. On appeal, Mr. Pauley disagrees and asserts
that the report of Dr. Guberman is more reliable than the reports of Dr. Mukkamala and Dr.
Bailey. Mr. Pauley further asserts that Dr. Guberman found he was entitled to an additional 17%
permanent partial disability award for a total of 25% permanent impairment. Kingston Mining,
Inc., maintains that the reports of Dr. Mukkamala and Dr. Bailey found Mr. Pauley had no
clinical evidence of radiculopathy and that the lumbar spine fusion was not required as a result of
the compensable injury. Kingston Mining, Inc., further maintains that Dr. Guberman’s
impairment rating was incorrect because it included the lumbar spine fusion, which is not
causally related to the compensable injury. Kingston Mining, Inc., also argues that Dr.
Mukkamala and Dr. Bailey found that Mr. Pauley was not entitled to any additional award above
the 3% granted in this claim

        The Office of Judges considered the three independent medical evaluations performed by
Dr. Mukkamala, Dr. Guberman, and Dr. Bailey. Dr. Mukkamala found an 8% whole person
impairment for the lumbar spine. He apportioned 3% to this compensable injury and 5% to the
2008 injury. Dr. Guberman found Mr. Pauley has a 25% impairment and apportioned the entire
25% for this injury. Dr. Bailey recommended a 5% impairment for all work-related claims and
injuries to date involving the lower back. She further stated that any prior awards should be
subtracted from this recommendation. Dr. Bailey and Dr. Mukkamala concluded that the lumbar
spine fusion was unrelated to the compensable injury. The Office of Judges found that Dr.
Guberman was the only physician to find the surgery to be causally related to the compensable
injury of this claim and that his opinion was not supported by the medical evidence. The Office
of Judges concluded that the preponderance of the evidence showed no indication that the back
surgery was performed due to the compensable injury of this claim and that any impairment for
this surgery should not be considered in this claim. The Office of Judges held that the
preponderance of the evidence supports the conclusion that Mr. Pauley is entitled to no more
than a 3% permanent partial disability award for his lumbar sprain sustained on July 11, 2011.

       This Court agrees with the findings of the Office of Judges. Mr. Pauley’s only
compensable condition is a lumbar sprain. Dr. Guberman was the only physician who found the
surgery is causally related to the compensable injury. His opinion was not supported by the
medical evidence. Dr. Bailey and Dr. Mukkamala disagreed with Dr. Guberman’s findings. Dr.
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Bailey opined that the surgery treated Mr. Pauley’s degenerative disc disease and degenerative
joint disease of the lumbar spine that is unrelated to the compensable injury and is part of the
normal aging process. Therefore, this Court finds that Mr. Pauley is only entitled to a 3%
permanent partial disability award for this 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: December 3, 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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