                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               July 17, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOHN D. WALLS,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1439	 (BOR Appeal No. 2045968)
                   (Claim No. 2009064987)

ARCH COAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner John D. Walls, by Bradley Pyles, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Arch Coal, Inc., by Bradley Crouser, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 20, 2011, in
which the Board affirmed an April 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 3, 2010,
decision granting Mr. Walls a 25% 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. Walls sustained multiple injuries during a roof fall in an underground coal mine on
October 17, 2008. The claim was held compensable for open wound of the scalp and forehead;
major depression, single episode; post-traumatic stress disorder; sprain/strain of the lumbar
region; sprain/strain of the thoracic region; sprain/strain of the shoulders; and bilateral
coracoclavicular sprain. Mr. Walls has undergone multiple independent medical evaluations to
determine the amount of permanent impairment for these injuries. On June 18, 2009, Dr.
Mukkamala found that Mr. Walls sustained 2% whole person impairment for the scalp wound.
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On November 19, 2009, Dr. Miller found that he sustained 3% whole person impairment as a
result of his psychiatric conditions. On January 21, 2010, Dr. Bachwitt found that Mr. Walls
sustained 21% whole person impairment, but did not include impairment for the scalp wound or
psychiatric impairment in his assessment. On August 25, 2010, Dr. Guberman found that Mr.
Walls sustained 32% whole person impairment, excluding psychiatric impairment.

       In its Order affirming the March 3, 2010, claims administrator’s decision, the Office of
Judges held that Mr. Walls sustained a 25% permanent partial disability as a result of the
October 17, 2008, injury. Mr. Walls disputes this finding and asserts, per the opinion of Dr.
Guberman, that he is entitled to an additional 8% permanent partial disability award.

        When initially granting Mr. Walls a 25% permanent partial disability award, the claims
administrator relied on the opinion of Dr. Short, who recommended combining Dr. Miller’s 3%
recommendation, Dr. Mukkamala’s 2% recommendation, and Dr. Bachwitt’s 21%
recommendation. The Office of Judges found that Dr. Guberman obtained the most limited range
of motion measurements of all the evaluations, and further found that he was the only evaluator
to assign impairment for dizziness and disequilibrium; neither dizziness nor disequilibrium are
compensable components of the claim. The Office of Judges then found that the preponderance
of the evidence dictates that the claims administrator’s decision be affirmed. The Board of
Review reached the same reasoned conclusions in its decision of September 20, 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: July 17, 2013

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

DISSENTING:
Justice Menis E. Ketchum




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