                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 8, 2013

                                                                            RORY L. PERRY II, CLERK

MICHAEL W. SPAULDING,                                                     SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0811 (BOR Appeal No. 2045218)
                    (Claim No. 2002010713)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

RITCH CREEK SERVICES, LLC
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Michael W. Spaulding, by John Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Gary Mazezka, 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 25, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 6, 2009,
decision granting no additional permanent partial disability award for the right knee 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.

                                                1
        Mr. Spaulding was working as a heavy equipment operator for Ritch Creek Services
when he injured his right knee. The claim was held compensable for a knee sprain and he was
treated conservatively. Based on an evaluation by Dr. Scott, Mr. Spaulding was awarded a 2%
permanent partial disability award on January 10, 2003. Dr. Poletajev evaluated Mr. Spaulding
on December 14, 2007, and found that he suffered from 13% whole person impairment due to
the compensable injury. On March 19, 2009, Dr. Scott evaluated the claimant a second time and
confirmed his earlier 2% impairment finding. On April 6, 2009, the claims administrator granted
no additional permanent partial disability award. Dr. Mukkamala found that Mr. Spaulding had
normal range of motion and no atrophy on June 3, 2010.

        The Office of Judges concluded that the preponderance of the evidence did not support an
additional permanent partial disability award. On appeal, Mr. Spaulding argues that only Dr.
Poletajev conducted a full evaluation of his current condition, and thus he is entitled to a 13%
permanent partial disability award as found by that evaluation. The West Virginia Office of
Insurance Commissioner maintains that Mr. Spaulding is not entitled to an additional permanent
partial disability award.

        In affirming the claims administrator’s Order, the Office of Judges found that Mr.
Spaulding had not shown that there had been a progression or aggravation of the compensable
injury to justify an additional permanent partial disability award. The Office of Judges noted that
Dr. Poletajev’s measurements were distinctly different from the other physicians’ findings. The
Office of Judges held that the preponderance of the evidence did not support an additional
permanent partial disability award. The Board of Review agreed in its Order 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: February 8, 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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