                             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. 13-1170 (BOR Appeal No. 2048351)
                    (Claim No. 2009068220)


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. Kingston
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 5% 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 November 7, 2008, he
sustained an injury to his right hip and back while working underground. The claim was held
compensable for back contusion and contusion of the hip. Mr. Pauley filed an application
requesting permanent partial disability. The claims administrator granted Mr. Pauley a 5%
permanent partial disability award for his lumbar spine for the November 7, 2008, injury based
on the initial report of Prasadarao B. Mukkamala, M.D.
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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 Dr.
Mukkamala who concluded that Mr. Pauley was not entitled to any additional impairment over
the 5% that he previously recommended in his initial report. The second independent medical
evaluation was performed by Bruce A. Guberman, M.D. He recommended Mr. Pauley receive an
additional 3% award over the 5% previously granted. The final independent medical evaluation
was performed by Marsha Lee Bailey, M.D. She concluded that he has 5% impairment inclusive
of all work-related claims and injuries to date involving the lower back.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Pauley was entitled to a 5% permanent partial disability award for his compensable injury of
November 7, 2008. The Board of Review affirmed the Order of the Office of Judges. On appeal,
Mr. Pauley disagrees and asserts that the opinion of Dr. Guberman is most reliable and that he
clearly identified an 8% whole person impairment for the compensable injury of November 7,
2008. Kingston Mining, Inc., maintains that the record clearly states that at least two physicians
found Mr. Pauley’s impairment to be no more than 5%. Kingston Mining, Inc., further maintains
that Mr. Pauley is entitled to 0% additional impairment based upon the reports of Dr.
Mukkamala and Dr. Bailey.

        The Office of Judges considered the three independent medical evaluations performed by
Dr. Mukkamala, Dr. Guberman, and Dr. Bailey. Dr. Mukkamala found 8% whole person
impairment for the lumbar spine and apportioned 5% impairment to this compensable injury and
3% to a separate 2011 injury. Dr. Guberman then found Mr. Pauley has a total of 8% impairment
for the lumbar spine for this injury. Because the claims administrator had already granted a prior
5% award in this claim, Dr. Guberman recommended an additional 3% permanent partial
disability award for this injury. Dr. Bailey found Mr. Pauley has 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.

        The Office of Judges found that all three physicians examined Mr. Pauley for back sprain
as was stated in their reports. The Office of Judges noted that this claim was held compensable
for contusion of the back and contusion of the hip and not for a back sprain. The Office of Judges
concluded that a preponderance of the evidence supports the conclusion that Mr. Pauley has no
more than 5% permanent partial disability with regard to the November 7, 2008, injury.

        This Court agrees with the conclusion of the Office of Judges. Dr. Mukkamala listed
lumbar sprain as a diagnosis because he was evaluating Mr. Pauley for this injury and the 2011
injury, which has a compensable diagnosis of lumbar sprain. Dr. Guberman and Dr. Bailey also
were evaluating Mr. Pauley for both compensable injuries. However, these physicians separated
their impairment ratings for this injury from the 2011 injury. Dr. Mukkamala found 5%
impairment for Mr. Pauley’s 2008 lumbar injury and concluded that Mr. Pauley was not entitled
to any additional award over the 5% the claims administrator granted in this claim.

        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
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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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