                              STATE OF WEST VIRGINIA


                           SUPREME COURT OF APPEALS
                                                                                     FILED
SCOTTIE ELSWICK,                                                                     June 8, 2017
                                                                                RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                    SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


vs.)   No. 16-0583 (BOR Appeal No. 2050987)
                   (Claim No. 2014010192)

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent

                              MEMORANDUM DECISION
      Petitioner Scottie Elswick, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by
Henry C. Bowen, its attorney, filed a timely response.

         The issue on appeal is the amount of permanent partial disability award that Mr. Elswick
is entitled to for his compensable injury. This appeal arises from the claims administrator’s June
26, 2014, decision granting a 1% permanent partial disability award. The Office of Judges
affirmed the decision in its November 24, 2015, Order. The Board of Review then affirmed the
Office of Judges’ Order on May 20, 2016. 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. Elswick, a continuous mine operator, was injured in the course of his employment
on September 24, 2013, when he was struck by a large rock. Treatment notes from Charleston
Area Medical Center that day indicate that he was at work when a fourteen foot long piece of
rock rolled on top of him, crushing him underneath and causing him to twist at the hips and
pinning his right leg underneath. X-rays of the right tibia and fibula showed calcific densities
which could be the result of old avulsion fractures or unfused ossification center. There were no
acute fractures. X-rays of the right knee also showed calcific densities but no acute fractures. Mr.
Elswick was diagnosed with right medial collateral ligament sprain, right hip pain, and right
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anterior shin pain. On October 4, 2013, the claim was held compensable for right hip strain, right
knee sprain/strain, and right lower leg/shin strain.

       Paul Bachwitt, M.D., performed an independent medical evaluation on January 27, 2014,
in which he diagnosed right hip, right knee, and right ankle sprains/strains with classic findings
of a torn meniscus in the right knee. He felt there was a causal relationship between the
diagnoses and the compensable injury. Dr. Bachwitt opined that Mr. Elswick had not yet reached
maximum medical improvement and recommended a right knee arthroscopy as requested by
Stanley Tao, M.D. On June 6, 2014, Dr. Bachwitt again evaluated Mr. Elswick and found that he
had reached maximum medical improvement. Using the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (4th ed. 1993), he assessed 1% whole person
impairment. The claims administrator granted Mr. Elswick a 1% permanent partial disability
award on June 26, 2014.

        Bruce Guberman, M.D., performed an independent medical evaluation on January 13,
2015, in which he diagnosed chronic post-traumatic strain of the right knee, status post partial
lateral menisectomy and medial plica excision on February 20, 2014, as well as chronic post-
traumatic strain of the right ankle. He found that Mr. Elswick had reached maximum medical
improvement and assessed 8% whole person impairment, representing 4% for the ankle and 4%
for the foot. On April 27, 2015, Prasadarao Mukkamala, M.D., performed an independent
medical evaluation in which he diagnosed right hip strain and right knee sprain. He found a
causal relationship between the right knee and hip symptom and the compensable injury. He
found Mr. Elswick had reached maximum medical improvement and diagnosed 1% impairment.

        The Office of Judges affirmed the claims administrator’s grant of a 1% permanent partial
disability award on November 24, 2015. It noted that Eastern Associated Coal, LLC, argued that
Dr. Guberman’s rating was excessive and unreliable. Dr. Bachwitt found 1% impairment and
seven months later, Dr. Guberman assessed 8% impairment, though he failed to provide evidence
of a progression or worsening of Mr. Elswick’s condition. The Office of Judges found that Dr.
Guberman’s report provided no explanation for the large increase in impairment between exams.
The Office of Judges noted that Eastern Associated Coal, LLC, further argued that Dr.
Guberman used another table for rating a worse range of motion on Mr. Elswick’s knee than Dr.
Bachwitt, who correctly rated the right knee partial menisectomy using the specific table
designed for that rating. The Office of Judges concluded that a preponderance of the evidence
shows that Mr. Elswick is entitled to a 1% permanent partial disability award. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on May 20, 2016.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Dr. Guberman’s findings are disproportionate and out of line
with the other independent medical evaluations of record. Mr. Elswick was assessed with 1%
impairment both before and after Dr. Guberman’s report. The evaluations of Dr. Bachwitt and
Dr. Mukkamala are more reliable than that of Dr. Guberman.


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        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 8, 2017

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




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