                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                            September 15, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
WILLIAM H. BALLENGER,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1228	 (BOR Appeal No. 2049514)
                   (Claim No. 2009052235)

R & E ELECTRIC COMPANY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner William H. Ballenger, by Stephen New, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. R & E Electric Company, Inc., by
Alyssa Sloan, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 29, 2014, in
which the Board affirmed a May 30, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 22, 2013,
decision granting Mr. Ballenger an additional 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. Ballenger injured his right knee and lower back on July 16, 2008, when he slipped
and fell while carrying a length of pipe. Mr. Ballenger’s claim was subsequently held
compensable for displacement of an intervertebral disc without myelopathy, site unspecified;
sprain/strain of the lumbosacral joint and ligament; and sprain/strain of an unspecified site of the
knee/leg. On June 4, 2009, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation. He opined that Mr. Ballenger sustained 0% whole person impairment as a result of
the compensable knee injury. After placing Mr. Ballenger in Lumbar Category II of West
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Virginia Code of State Rules § 85-20-Table C (2006), Dr. Mukkamala opined that he sustained
8% whole person impairment as a result of range of motion abnormalities in the lumbosacral
spine and a displaced intervertebral disc. On October 8, 2009, the claims administrator granted
Mr. Ballenger an 8% permanent partial disability award based upon Dr. Mukkamala’s
independent medical evaluation.

        On May 12, 2010, Julian Chipley, D.C., performed an independent medical evaluation.
He placed Mr. Ballenger in Lumbar Category III of West Virginia Code of State Rules § 85-20­
Table C based upon Mr. Ballenger’s history of chronic pain and based upon his finding of
objectively verified evidence of radiculopathy. Dr. Chipley opined that Mr. Ballenger sustained
13% whole person impairment as a result of range of motion abnormalities in the lumbar spine.
He declined to provide an impairment rating for the compensable knee injury because he
concluded that the majority of Mr. Ballenger’s ongoing right knee pain is actually referred pain
arising from right-sided S1 radiculopathy.

        On May 24, 2012, Bruce Guberman, M.D., performed an independent medical
evaluation. He also opined that Mr. Ballenger sustained 0% whole person impairment as a result
of the compensable knee injury. Dr. Guberman opined that Mr. Ballenger should now be placed
in Lumbar Category III of West Virginia Code of State Rules § 85-20-Table C because he
exhibits a decreased Achilles tendon reflex and sensory loss in the right leg, both of which are
consistent with S1 radiculopathy. He then opined that Mr. Ballenger sustained 13% whole person
impairment as a result of right-sided radiculopathy and range of motion abnormalities in the
lumbar spine.

        Finally, Jerry Scott, M.D., performed an independent medical evaluation on April 9,
2013. He opined that Mr. Ballinger sustained 0% whole person impairment as a result of the
compensable knee injury. He further opined that Mr. Ballenger’s compensable lumbar spine
injuries were superimposed upon pre-existing degenerative disc disease. After determining that
Mr. Ballenger is best placed in Lumbar Category II of West Virginia Code of State Rules § 85­
20-Table C, Dr. Scott opined that Mr. Ballenger sustained 8% whole person impairment as a
result of range of motion abnormalities in the lumbar spine.

        On April 22, 2013, the claims administrator granted Mr. Ballenger a 0% additional
permanent partial disability award based upon Dr. Scott’s independent medical evaluation. In its
Order affirming the April 22, 2013, claims administrator’s decision, the Office of Judges held
that Mr. Ballenger sustained a total of 8% whole person impairment as a result of his
compensable injuries and therefore has been fully compensated through his prior 8% permanent
partial disability award. The Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision dated October 29, 2014. On appeal, Mr. Ballenger asserts that the
Board of Review, Office of Judges, and claims administrator erred in failing to grant him an
additional 5% permanent partial disability award, for a total award of 13%, based upon the
opinion of Dr. Guberman.

       After noting that prior diagnostic studies did not clearly reveal the presence of
radiculopathy, the Office of Judges determined that Mr. Ballenger is appropriately placed in
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Lumbar Category II of West Virginia Code of State Rules § 85-20-Table C. Further, the Office
of Judges noted that on September 17, 2013, it affirmed the denial of Mr. Ballenger’s request for
authorization of the medication Celebrex based upon a finding that his current symptoms arise
from non-compensable degenerative disc disease and determined that its prior finding remains
applicable in relation to the instant appeal. The denial of Mr. Ballenger’s request for
authorization of the medication Celebrex was not appealed to this Court. Finally, the Office of
Judges found that Dr. Scott’s determination that Mr. Ballenger sustained 8% whole person
impairment as a result of his compensable injury is persuasive and concluded that Mr. Ballenger
has therefore been fully compensated through his prior 8% permanent partial disability award.
We agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of
Review.

        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 15, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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