                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 March 6, 2012

                                                                            RORY L. PERRY II, CLERK

DARIS R. KISNER,                                                          SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0788	 (BOR Appeal No. 2045277)
                   (Claim No. 2008033641)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Daris R. Kisner, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by Gary
Nickerson, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 26, 2011, in
which the Board affirmed an October 15, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 9, 2009,
decision granting Mr. Kisner a 1% permanent partial disability award for his left ankle injury.
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.

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        Mr. Kisner injured his left ankle while tightening a steel union on February 13, 2008. On
April 22, 2009, the claim was held compensable for left ankle fracture, left ankle sprain/strain,
and left ankle pain. On July 7, 2009, Dr. Condaras performed an independent medical evaluation
and recommended a 1% permanent partial disability award for the compensable injury. On
November 8, 2009, Dr. Milan performed an independent medical evaluation and recommended a
10% permanent partial disability award. On July 22, 2010, Dr. Martin performed an independent
medical evaluation and agreed with Dr. Condaras’s recommendation of a 1% permanent partial
disability award.

        In its Order affirming the claims administrator’s July 9, 2009, decision, the Office of
Judges held that Mr. Kisner is entitled to a 1% permanent partial disability award for his left
ankle injury. Mr. Kisner disputes this finding and asserts, per the opinion of Dr. Milan, that he is
entitled to a 10% permanent partial disability award for his left ankle injury.

       The Office of Judges found that the report of Dr. Milan is suspect when compared to the
other two independent medical evaluations of record. Dr. Milan found much greater range of
motion impairment in the left ankle than did Dr. Condaras, who evaluated Mr. Kisner before she
did, and Dr. Martin, who evaluated him afterwards. The Office of Judges further found that Dr.
Milan did not use the proper device to measure Mr. Kisner’s range of motion impairment, as
pointed out by Dr. Martin. The Board of Review reached the same reasoned conclusion in its
decision of April 26, 2011. 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: March 6, 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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