                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDALL D. BARB,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0267 (BOR Appeal No. 2049926)
                   (Claim No. 2013020365)

MULTIFRESH, INC./LWF EIN RESOURCES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Randall D. Barb, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Multifresh, Inc. and LWF EIN
Resources, LLC, by Bradley A. Couser, their attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed an October 3, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 3, 2013,
decision granting Mr. Barb a 4% 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. Barb worked as a delivery driver for Multifresh, Inc., and LWF EIN Resources, LLC.
On December 14, 2012, Mr. Barb fell and injured his right knee when a pallet he stepped on
broke. The claim was held compensable for a sprain of the knee. Mr. Barb’s injury was initially
treated with physical therapy, but after an MRI taken in January of 2013 revealed tears of the
anterior and posterior horn of the lateral meniscus, he came under the care of an orthopedic
surgeon, S. Brett Whitfield, M.D. Dr. Whitfield confirmed the diagnosis of a lateral tear of the
meniscus of the right knee that was shown on the MRI. Dr. Whitfield then performed an
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arthroscopic debridement of the lateral and medial meniscal tears. Dr. Whitfield also found that
Mr. Barb had a microfracture of the lateral femoral condyle and chondroplasty of the patella. A
month after the surgery, the claims administrator authorized an osteoarthritic knee brace and an
unloader brace.

        Prasadarao B. Mukkamala, M.D., evaluated Mr. Barb. He found that Mr. Barb had
reached his maximum degree of medical improvement. Dr. Mukkamala determined that Mr.
Barb had mild limitation of the range of motion of his right knee. Based on his loss of range of
motion, Dr. Mukkamala found that Mr. Barb had 4% whole person impairment related to his
right knee. Dr. Mukkamala determined that, calculated under an alternative method, Mr. Barb
had 4% impairment for a partial meniscectomy of the medial and lateral menisci. Dr. Mukkamala
noted that only one rating should be used to calculate Mr. Barb’s impairment under the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), and he
found that Mr. Barb had 4% impairment for his right knee injury. On July 3, 2013, the claims
administrator granted Mr. Barb a 4% permanent partial disability award for his knee injury.

        After this decision, Yogesh Chand, M.D., evaluated Mr. Barb. He found that Mr. Barb
had a slightly antalgic gait on the right side but could walk without the assistance of a cane or
crutches. Dr. Chand also found that Mr. Barb intermittently wore a knee brace but that the brace
was not routinely required. Based on Table 36 of the American Medical Association’s Guides,
Dr. Chand found that Mr. Barb had 15% whole person impairment for gait derangement due to
his right knee injury. Michael R. Condaras, D.C., also evaluated Mr. Barb. He found that Mr.
Barb had 4% impairment for loss of range of motion in the right knee. He also found that Mr.
Barb had 4% whole person impairment for a partial meniscectomy of the medial and lateral
meniscus. Dr. Condaras found that Mr. Barb’s impairment should be calculated based on his
meniscectomy and determined that Mr. Barb had 4% whole person impairment related to his
knee. Dr. Condaras also criticized Dr. Chand’s calculation of Mr. Barb’s impairment based on
gait derangement. Dr. Condaras found that Mr. Barb did not qualify for a 15% whole person
impairment rating for gait derangement under Table 36 of the American Medical Association’s
Guides because Mr. Barb did not routinely require the use of a short leg brace. Dr. Condaras also
found that any arthritis in Mr. Barb’s knee pre-existed the compensable injury. On October 3,
2014, the Office of Judges affirmed the claims administrator’s decision. The Board of Review
affirmed the Order of the Office of Judges on February 25, 2015, leading Mr. Barb to appeal.

        The Office of Judges concluded that the evidence did not show that the claims
administrator erred in granting Mr. Barb a 4% permanent partial disability award. The Office of
Judges based this determination on the recommendations of Dr. Mukkamala and Dr. Condaras.
The Office of Judges also considered the impairment recommendation of Dr. Chand, but it found
that Dr. Mukkamala’s and Dr. Condaras’s opinions were more persuasive. The Office of Judges
specifically relied on Dr. Condaras’s criticism of the use of gait derangement in Dr. Chand’s
evaluation. 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. Barb has not presented sufficient evidence to show that he is entitled to greater than
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a 4% permanent partial disability award related to his right knee injury. Dr. Mukkamala and Dr.
Condaras adequately evaluated Mr. Barb under the American Medical Association’s Guides. The
rating is consistent with the evidence in the record, and the Office of Judges was justified in
relying on their opinions. The Office of Judges was also within its discretion in disregarding Dr.
Chand’s impairment recommendation. Dr. Chand did not provide an adequate explanation for
calculating Mr. Barb’s impairment for gait derangement. His recommendation was also not
supported by the evidence in the record. The Office of Judges gave adequate reasons for
discrediting Dr. Chand’s opinion, and the Board of Review properly affirmed its findings.

        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: February 4, 2016

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




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