                              STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS


TERRY J. BROWN SR.,

Claimant Below, Petitioner                                                          FILED

                                                                                    June 15, 2016
                                                                               RORY L. PERRY II, CLERK
vs.)   No. 15-0616 (BOR Appeal No. 2050055)                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
                   (Claim No. 2013007588)

BRODY MINING, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Terry J. Brown Sr., by Gregory Prudich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Brody Mining, LLC, by Jillian
Moore, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 22, 2015, in which
the Board affirmed a December 2, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 23, 2013, decision
granting Mr. Brown a 13% 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. Brown injured his thoracic and lumbar spine in the course of his employment as a
roof bolter on September 13, 2012.1 Mr. Brown underwent three independent medical

1
  The Order holding Mr. Brown’s claim compensable is not contained in the evidentiary record.
Although it is unclear which specific diagnoses are compensable, it is clear that both the injuries
to the thoracic and lumbar spine are compensable. Additionally, the evidence of record indicates
that the injuries sustained by Mr. Brown were thoracic and lumbar sprains.
                                                1
evaluations for the purpose of determining the amount of permanent impairment arising from the
September 13, 2012, injury. According to a report dated September 24, 2013, Jerry Scott, M.D.,
performed the first independent medical evaluation. He opined that Mr. Brown sustained 3%
whole person impairment as a result of range of motion abnormalities in the thoracic spine. After
placing Mr. Brown in Thoracic Category II of the West Virginia Code of State Rules § 85-20­
Table D (2006), Dr. Scott adjusted his initial recommendation and opined that Mr. Brown
sustained 5% whole person impairment as a result of injuries to his thoracic spine. Dr. Scott then
opined that Mr. Brown sustained 9% whole person impairment as a result of range of motion
abnormalities in the lumbar spine. After placing Mr. Brown in Lumbar Category II of the West
Virginia Code of State Rules § 85-20-Table C (2006), Dr. Scott adjusted his initial
recommendation and opined that Mr. Brown sustained 8% whole person impairment as a result
of injuries to his lumbar spine. Dr. Scott utilized the Combined Values Chart contained in the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993) and opined that Mr. Brown sustained 13% whole person impairment as a result of injuries
sustained on September 13, 2012. Following Dr. Scott’s recommendation, the claims
administrator granted Mr. Brown a 13% permanent partial disability award.

         Bruce Guberman, M.D., performed the second independent medical evaluation dated
April 8, 2014. He opined that Mr. Brown sustained 8% whole person impairment as a result of
abnormalities in the thoracic spine pursuant to the guidelines contained within the American
Medical Association’s Guides to the Evaluation of Permanent Impairment. After placing Mr.
Brown in Thoracic Category II of the West Virginia Code of State Rules § 85-20-Table D, Dr.
Guberman opined that Mr. Brown sustained 8% whole person impairment as a result of injuries
to his thoracic spine. Dr. Guberman then opined that Mr. Brown sustained 12% whole person
impairment as a result of abnormalities in the lumbar spine. After placing Mr. Brown in Lumbar
Category II of the West Virginia Code of State Rules § 85-20-Table C, Dr. Guberman adjusted
his initial recommendation and opined that Mr. Brown sustained 8% whole person impairment as
a result of injuries to his lumbar spine. He then utilized the Combined Values Chart contained in
the American Medical Association’s Guides to the Evaluation of Permanent Impairment and
opined that Mr. Brown sustained 15% whole person impairment as a result of the injuries
sustained on September 13, 2012. Dr. Guberman recommended that Mr. Brown receive an
additional 2% permanent partial disability award.

       Finally, Prasadarao Mukkamala, M.D., performed an independent medical evaluation of
Mr. Brown by report dated June 19, 2014. Dr. Mukkamala opined that Mr. Brown sustained 5%
whole person impairment as a result of abnormalities in the thoracic spine pursuant to the
guidelines contained within the American Medical Association’s Guides to the Evaluation of
Permanent Impairment. After placing Mr. Brown in Thoracic Category II of the West Virginia
Code of State Rules § 85-20-Table D, Dr. Mukkamala opined that Mr. Brown sustained 5%
whole person impairment as a result of injuries to his thoracic spine. He then opined that Mr.
Brown sustained 14% whole person impairment as a result of abnormalities in the lumbar spine.
After placing Mr. Brown in Lumbar Category II of the West Virginia Code of State Rules § 85­
20-Table C, Dr. Mukkamala adjusted his initial recommendation and opined that Mr. Brown
sustained 8% whole person impairment as a result of injuries to his lumbar spine. Using the
Combined Values Chart contained in the American Medical Association’s Guides to the
                                                2
Evaluation of Permanent Impairment, he opined that Mr. Brown sustained 13% whole person
impairment as a result of the injuries sustained on September 13, 2012.

        In its Order affirming the October 23, 2013, claims administrator’s decision, the Office of
Judges held that Mr. Brown sustained 5% whole person impairment as a result injuries to his
thoracic spine and 8% whole person impairment as a result of injuries to his lumbar spine, for a
total of 13% whole person impairment. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated May 22, 2015. On appeal, Mr. Brown
asserts, per the opinion of Dr. Guberman, that he is entitled to an additional 2% permanent
partial disability award, for a total award of 15%.

        As was noted by the Office of Judges, Dr. Guberman’s findings with respect to the
amount of permanent impairment arising from the lumbar spine injury do not substantially differ
from those of Dr. Scott and Dr. Mukkamala, as all three physicians determined that Mr. Brown
sustained 8% whole person impairment as a result of his lumbar spine injuries. Therefore, only
the amount of permanent impairment arising from the thoracic spine injury is presently at issue.
Both Dr. Scott, who evaluated Mr. Brown before Dr. Guberman performed his examination, and
Dr. Mukkamala, who examined Mr. Brown after Dr. Guberman’s evaluation, opined that Mr.
Brown sustained 5% whole person impairment as a result of the injuries to his thoracic spine,
whereas Dr. Guberman opined that he sustained 8% whole person impairment as a result of the
injuries to his thoracic spine. After reviewing the evidence of record, the Office of Judges found
that Dr. Guberman’s findings regarding the thoracic spine are uncorroborated by the remainder
of the record. We agree with the reasoning and conclusions of the Office of Judges, as affirmed
by 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: June 15, 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




                                                3
