                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDY D. KINCAID,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0026 (BOR Appeal No. 2047422)
                   (Claim No. 2010113882)

MAPLE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Randy D. Kincaid, by John H. Shumate Jr., his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Maple Coal Company, by Sean
Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 18, 2012, in
which the Board affirmed a July 6, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 10, 2011, decision
granting Mr. Kincaid an 8% 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. Kincaid worked as an underground coal miner for Maple Coal Company. On
September 4, 2009, he was operating a scoop in an underground mine. He ran over a rib roll
causing him to hit his head on the canopy of the scoop and injure his cervical spine. The claims
administrator initially rejected the claim, but the Office of Judges held the claim compensable.
Prasadarao B. Mukkamala, M.D., then evaluated Mr. Kincaid and found that he had a cervical
strain causing a disc protrusion at the C6-7 disc. Dr. Mukkamala noted that Mr. Kincaid had a
prior neck injury while working for a different employer but found that it had completely healed.
                                                1
Dr. Mukkamala determined that Mr. Kincaid had not reached his maximum degree of medical
improvement and that it was inappropriate to evaluate him for permanent impairment at that
time. Two months later, Dr. Mukkamala evaluated Mr. Kincaid a second time and found that he
had reached his maximum degree of medical improvement. Dr. Mukkamala determined that Mr.
Kincaid had 13% whole person impairment for his cervical spine under the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Dr. Mukkamala
then adjusted his finding to an 8% whole person impairment rating to fit within Cervical
Category II of West Virginia Code of State Rules § 85-20-E (2006). On February 10, 2011, the
claims administrator granted Mr. Kincaid an 8% permanent partial disability award. Yogesh
Chand, M.D., also evaluated Mr. Kincaid and determined that he had 18% whole person
impairment because his symptoms fit within Cervical Category III of West Virginia Code of
State Rules § 85-20-E. Dr. Chand apportioned 3% impairment to Mr. Kincaid’s pre-existing
cervical arthritis and found that he had 15% whole person impairment related to the compensable
injury. Dr. Mukkamala then issued a supplemental report stating that some apportionment for
Mr. Kincaid’s past neck injury would be reasonable. Nevertheless, Dr. Mukkamala stated that he
believed the entire 8% impairment calculated in his independent medical evaluation was related
to the compensable injury. On July 6, 2012, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
December 18, 2012, leading Mr. Kincaid to appeal.

        The Office of Judges concluded that Mr. Kincaid was entitled to an 8% permanent partial
disability award as a result of the injury to his cervical spine. The Office of Judges based this
determination on the recommendation of Dr. Mukkamala, which it found was the only reliable
evidence of Mr. Kincaid’s permanent impairment. The Office of Judges found that Dr.
Mukkamala properly based his recommendation on the American Medical Association’s Guides
and West Virginia Code of State Rules § 85-20-E. The Office of Judges determined that Dr.
Chand’s report could not be considered reliable. It found that Dr. Chand evaluated Mr. Kincaid
for permanent impairment despite finding that he had not reached his maximum degree of
medical improvement. The Office of Judges also found that Dr. Chand did not reference the
American Medical Association’s Guides in determining Mr. Kincaid’s whole person impairment.
Finally, the Office of Judges determined that Dr. Chand did not adequately justify placing Mr.
Kincaid in Cervical Category III of West Virginia Code of State Rules § 85-20-E because there
was no objective evidence of radiculopathy. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Kincaid has not demonstrated that he is entitled to any greater than an 8% permanent
partial disability award for his cervical injury. Dr. Mukkamala provided the only reliable rating
of Mr. Kincaid’s cervical impairment, and he found that Mr. Kincaid had 8% whole person
impairment. Dr. Chand’s evaluation was not reliable. He did not comply with West Virginia
Code of State Rules § 85-20-64.1 (2006) because his impairment recommendation was not based
on the range of motion model of the American Medical Association’s Guides.

        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
                                                2
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: June 10, 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




                                              3
