                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
NORMAN B. WORKMAN,                                                             November 18, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0241 (BOR Appeal No. 2046270)
                   (Claim No. 2009085267)

ROCKHOUSE CREEK DEVELOPMENT, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Norman B. Workman, by John C. Blair, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Rockhouse Creek Development,
LLC, by Nathanial A. Kuratomi, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 30, 2012, in
which the Board affirmed an August 11, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 18,
2009, decision granting a 0% 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. Workman worked as a roof bolter for Rockhouse Creek Development, LLC. On
February 19, 2009, he suffered an injury to his right knee when he was trying to push a three-
wheeler mantrip. The claim was held compensable for sprain/strain of the knee/leg but not
compensable for meniscus tear. The claims administrator granted a 0% permanent partial
disability award. On September 11, 2009, Dr. Mukkamala concluded that Mr. Workman had an
8% whole person impairment for all injuries to the right knee but had previously received a
permanent partial disability award of 2%. Ultimately, he rated Mr. Workman as having a 6%
whole person impairment attributable to this injury. On April 19, 2010, Dr. Guberman
recommended that Mr. Workman receive a 4% permanent partial disability award. On March 29,
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2011, Dr. Short recommended that there was no additional impairment for the injury and
subsequent surgery because of the prior 10% permanent partial disability award in Claim
940018101. On April 4, 2011, Dr. Bachwitt concluded that Mr. Workman had been fully
compensated.

        The Office of Judges affirmed the claims administrator’s decision, and held that based
upon the preponderance of the evidence, Mr. Workman failed to show that he is entitled to an
additional award for the right knee injury in this claim since he received a prior 10% permanent
partial disability award. On appeal, Mr. Workman disagrees and asserts that the Office of Judges
erred in stating that none of the evaluators of record found Mr. Workman had an impairment
greater than 10%. He further asserts that Dr. Guberman applied the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) and found that
Mr. Workman had a 4% impairment attributable to this injury because the operation was
necessary as a result of the compensable injury.

        The Office of Judges concluded that a preponderance of the evidence does not support an
additional permanent partial disability award because Dr. Guberman and Dr. Bachwitt found a
4% impairment for Mr. Workman’s right knee, which has been fully compensated by the prior
10% permanent partial disability award for an injury in 1993. Dr. Guberman opined that Mr.
Workman should receive an additional award of 4% in excess of the prior permanent partial
disability award because the surgery was entirely necessary as a result of the injury in this claim.
However, Dr. Guberman’s recommendation is not supported by the evidence because none of the
other evaluators found Mr. Workman’s impairment greater than 10%. Dr. Short found no
additional impairment based upon the knee injury and the subsequent surgery, and Dr. Bachwitt
determined Mr. Workman had been fully compensated. The Office of Judges held that Mr.
Workman was not entitled to an additional permanent partial disability award. The Board of
Review reached the same reasoned conclusions in its decision of January 30, 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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