                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                     FILED
JERRY MULLINS,                                                                  September 10, 2013
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 12-0032	 (BOR Appeal No. 2046002)
                    (Claim No. 2010124316)

PINNACLE MINING COMPANY, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Jerry Mullins, by Gregory S. Prudich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Pinnacle Mining Company, LLC, by
Sean Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 14, 2011, in
which the Board modified a May 26, 2011, Order of the Workers’ Compensation Office of
Judges to include disorder of bursae and tendons in the shoulder as compensable. In its Order,
the Office of Judges affirmed the claims administrator’s December 16, 2010, decision granting
the claim as compensable for a chest wall contusion and a rotator cuff strain and denying
compensability for cervical spondylosis and brachial neuritis. 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. Mullins alleged that he suffered an injury to his right rib, chest wall, shoulder, and
neck when working as a shuttle car operator for Pinnacle Mining Company, LLC. He was using
a slate bar to remove a piece of coal that stuck on the belt line tail piece when he fell head first,
landing on his right shoulder and head. The claim was initially held compensable for right
shoulder sprain and right chest contusion. Dr. Chand treated Mr. Mullins from February 18,
2010, until September 5, 2010, and concluded that his neck sprain was a result of the work-
related injury. On September 16, 2010, Dr. Mukkamala performed an independent medical
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evaluation and concluded that the neck pain was a result of underlying degenerative changes and
not causally related to the work-related injury.

        The Office of Judges affirmed the claims administrator’s decision and held that the
preponderance of evidence established that Mr. Mullins’s cervical conditions and his
radiculopathy preexisted his work-related injury, did not establish that he is suffering from a
disorder of bursae and tendons in his shoulder, and did establish that he had a right rib fracture
and a rotator cuff strain as a result of the work-related injury. Mr. Mullins disagrees and asserts
that Dr. Chand knew of the preexisting neck conditions and considered them when determining
his current symptoms were caused by the work-related injury, and that Dr. Mukkamala’s report
did not truly consider these diagnoses because the report was completed before Dr. Chand made
the request for additional diagnoses. Pinnacle Mining Company, LLC maintains that the
preponderance of the evidence established that Mr. Mullins’s neck condition was not the result
of a work-related injury but caused by a preexisting cervical spine condition.

        The Office of Judges determined Dr. Chand’s findings were not persuasive in
establishing a causal connection of the neck condition and the work-related injury. In fact, Dr.
Chand testified that he only received Mr. Mullins’s medical history from him, and that he stated
he had no prior neck injury. The Office of Judges relied on Dr. Mukkamala’s findings that the
cervical condition and radiculopathy were preexisting, and also found that records from
Princeton Community Hospital support the conclusion that Mr. Mullins had a medical history of
severe neck pain. Therefore, Dr. Chand’s conclusions are not accurate. The Board of Review
affirmed the Office of Judges’ Order in part by holding the claim compensable for a chest wall
contusion and rotator cuff strain and denying spondylosis and brachial neuritis and modified in
part by adding the disorder of the bursae and tendons in the shoulder as compensable. We agree
with the reasoning and conclusion 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: September 10, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum

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