                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
JAMES W. KISER,                                                                November 18, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0261	 (BOR Appeal No. 2046221)
                    (Claim No. 2007004166)

PINNACLE MINING COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner James W. Kiser, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Pinnacle Mining Company, LLC, by
H. Dill Battle III, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated January 31, 2012, in
which the Board affirmed a July 28, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 19, 2009,
decision granting Mr. Kiser an 8% permanent partial disability award for his left shoulder. 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. Kiser worked as a mechanic for Pinnacle Mining Company, LLC. On January 18,
2007, he was injured when struck by a large chunk of ice while working in an elevator shaft in
the mines. The claim was held compensable for contusion of chest wall, contusion of shoulder
region, contusion of scapular region, other/unspecified injury of shoulder/upper arm, other
affections of the shoulder, disorder of bursae tendons, and sprain/strain of rotator cuff. The
claims administrator granted Mr. Kiser an 8% permanent partial disability award for his left
shoulder. On August 5, 2009, Dr. Guberman concluded that Mr. Kiser had an 8% whole person
impairment for the left shoulder. On March 4, 2010, Dr. Poletajev opined that Mr. Kiser had a
30% whole person impairment for the left upper extremity. On December 22, 2010, Dr. Landis
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determined that Mr. Kiser had an 8% whole person impairment for the left shoulder and no
evidence of any progression since the 8% permanent partial disability was awarded.

        The Office of Judges affirmed the claims administrator’s decision, and held that based
upon the preponderance of the evidence Mr. Kiser failed to show that he is entitled to an award
greater than the 8% permanent partial disability award that he was granted for the left shoulder
injury. Mr. Kiser disagrees and asserts that the Office of Judges erred in giving Dr. Poletajev’s
report less evidentiary weight because his report abided by the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) and provided reasoning for his
conclusions.

        The Office of Judges concluded that the reports of Dr. Guberman and Dr. Landis were
most persuasive because these reports appeared to properly rate impairment for Mr. Kiser’s left
shoulder by following the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, (4th ed. 1993). Dr. Poletajev found that Mr. Kiser had an impairment
regarding loss of grip strength and loss of muscle strength of the left shoulder; however, neither
Dr. Guberman nor Dr. Landis found an impairment regarding these conditions relating to the left
shoulder. The Office of Judges found Dr. Poletajev’s report unpersuasive because he added a
10% whole person impairment for acromioplasty to his rating for range of motion loss, and Dr.
Landis explained that acromioplasty is not listed as a ratable condition in the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, (4th ed. 1993). Even though
Dr. Guberman found Mr. Kiser had loss of range of motion impairment only and Dr. Landis
found impairment for loss of range of motion and for the surgeries, they both ultimately found
that Mr. Kiser had an 8% whole person impairment for the shoulder. The Office of Judges held
that Mr. Kiser failed to show that he is entitled to an award greater than the 8% permanent partial
disability award he was granted for the left shoulder injury. The Board of Review reached the
same reasoned conclusions in its decision of January 31, 2012. We agree with the reasoning and
conclusions of 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: November 18, 2013

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

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