                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 24, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
EUGENE R. PETTIT,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1759 (BOR Appeal No. 2046076)
                   (Claim No. 2010105105)

ALEX ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Eugene R. Pettit, by Linda Garrett, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alex Energy, Inc., by Sean Harter, its
attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 29, 2011, in
which the Board affirmed a June 10, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 29, 2010,
decision, which granted Mr. Pettit an 8% 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. Pettit was injured on September 9, 2009, while working for Alex Energy, when part
of the roof of an underground mine dislodged and fell on his head. The claim was held
compensable for a fractured vertebral column. Following a period of treatment, Mr. Pettit was
evaluated by Dr. Grady who found 17% impairment under the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993) based on loss of range of
motion and two fractures in Mr. Pettit’s cervical spine. Dr. Grady then reduced this percentage to
an 8% whole person impairment recommendation to fit within Category II of West Virginia
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Code of State Rules § 85-20-E (2006). Based on Dr. Grady’s recommendation, the claims
administrator granted Mr. Pettit an 8% permanent partial disability award on March 29, 2010.
Mr. Pettit was then evaluated by Dr. Scott who found an 18% impairment rating under the
American Medical Association’s Guides. Dr. Scott then placed Mr. Pettit in Category III for
cervical spine impairment based on restrictions in range of motion and decreased strength. Dr.
Scott recommended an 18% whole person impairment rating. Finally, Mr. Pettit was evaluated
by Dr. Mukkamala who found a 17% impairment rating under the American Medical
Association’s Guides and placed Mr. Pettit within Category II for cervical injuries because he
found no objective evidence of radiculopathy despite Mr. Pettit’s subjective complaints. Dr.
Mukkamala also recommended an 8% whole person impairment rating. The Office of Judges
affirmed the claims administrator’s decision on June 10, 2011. The Board of Review then
affirmed the Order of the Office of Judges on November 29, 2011, leading Mr. Pettit to appeal.

        The Office of Judges concluded that Mr. Pettit was in Category II under West Virginia
Code of State Rules § 85-20-E for his cervical spine injury and was entitled to an 8% permanent
partial disability award. The Office of Judges attributed significant weight to the findings of Dr.
Grady and Dr. Mukkamala who both found that Mr. Pettit had whole person impairment of 17%
under the American Medical Association’s Guides, which they both reduced to an 8% rating
under Category II of West Virginia Code of State Rules § 85-20-E. The Office of Judges found
that Dr. Scott miscalculated Mr. Pettit’s impairment under the American Medical Association’s
Guides by failing to properly combine his impairment for loss of range of motion and for
cervical fractures. The Office of Judges attributed less weight to Dr. Scott’s findings. The Office
of Judges further determined that Dr. Grady and Dr. Mukkamala sufficiently explained why they
placed Mr. Pettit’s injury in Category II. The Board of Review adopted the finding of the Office
of Judges and affirmed its Order.

         We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. The preponderance of the evidence in the record weighs in favor of finding that Mr.
Pettit is entitled to an 8% permanent partial disability award for his cervical spine injuries. Dr.
Grady and Dr. Mukkamala based their recommendations on a correct evaluation of Mr. Pettit’s
injuries under the American Medical Association’s Guides. Both physicians also placed Mr.
Pettit’s injuries into Category II of West Virginia Code of State Rules § 85-20-E for cervical
impairment and relied on objective findings for that determination. The Office of Judges was
sufficiently justified in placing significant weight on their recommendations.

        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: October 24, 2013


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

Chief Justice Brent D. Benjamin, disqualified




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