                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RONALD A. THOMAS,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0331 (BOR Appeal No. 2047589)
                    (Claim No. 2006041179 & 2011027968)

BIG SANDY FURNITURE,
Employer Below, Respondent

and

BIG SANDY FURNITURE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Ronald A. Thomas, by George Zivkovich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Big Sandy Furniture, by Bradley
Crouser, its attorney filed a timely response. Big Sandy Furniture, Inc., by Lisa Warner Hunter,
its attorney, also filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 11, 2013, in
which the Board affirmed an August 3, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 25, 2011,
decision to not open Mr. Thomas’s previous claim for additional temporary total disability
benefits. Furthermore, the Office of Judges modified the claim administrator’s March 16, 2011,
decision to state that Mr. Thomas’s left knee injury is denied because his condition is related to
pre-existing severe osteoarthritis. 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Thomas was an employee at Big Sandy Furniture in 2006 when he caught his foot on
an air conditioner strap and injured his knee and lower back. Based upon a report by Bruce
Guberman, M.D., Mr. Thomas was granted 8% permanent partial disability for the injuries to his
lumbar spine. Dr. Guberman opined in his report that the only problem in the left knee was a
sprain that would not result in any further disability rating. Thereafter the petitioner’s knee
problems seemed to dissipate. Mr. Thomas testified to that fact on September 20, 2011, at his
deposition. The Office of Judges found further support of the knee problems dissipating in the
reports of Dr. Guberman and Prasadarao B. Mukkamala, M.D. The claims administrator denied
reopening Mr. Thomas’s claim because he did not suffer a progression of his 2006 injury. The
Office of Judges affirmed the claims administrator’s decision because Dr. Guberman’s
independent medical examination conducted on November 14, 2006, showed that Mr. Thomas
was at his maximum degree of medical improvement and his knee had no resulting problems.
The Office of Judges used this information to come to the conclusion that Mr. Thomas’s current
knee problems were not the result of his 2006 injury.

        Mr. Thomas also submitted a claim for his alleged February 4, 2011, injury. The
petitioner asserts he was cleaning the lower shelf of a table on one knee. As he turned, he felt the
pop and pain. He immediately reported the injury to his supervisor, Pete Lilly. The claims
administrator denied Mr. Thomas’s application because there was no “specific, isolated and
fortuitous event described.” The Office of Judges modified the reasoning behind denying Mr.
Thomas’s new claim. The Office of Judges found that Mr. Thomas’s knee symptoms were
caused by his pre-existing osteoarthritis. In reaching its conclusion, the Office of Judges pointed
to the content of the reports of Dr. Mukkamala and Jeffery McElroy, M.D., which found Mr.
Thomas’s symptoms are caused by osteoarthritis and degenerative changes and not due to any
isolated injury or occurrence. The Board of Review adopted the findings of the Office of Judges
and affirmed its Order.

        We agree with the findings of the Office of Judges and the conclusions of the Board of
Review. The majority of the medical evidence points to the conclusion that Mr. Thomas’s
symptoms in his knee are neither related to his 2006 injury nor as a result of his alleged 2011
injury. The report of Dr. Guberman shows that Mr. Thomas’s 2006 injury healed. This is further
supported by Dr. Mukkamala’s report and Mr. Thomas’s own testimony. The Office of Judges
was not in error to conclude Mr. Thomas’s symptoms are attributable to his preexisting
osteoarthritis and normal degenerative changes instead of an isolated injury. The reliable and
credible reports of Drs. McElroy and Mukkamala indicate that the symptoms are most likely
related to osteoarthritis and degenerative changes.

        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.

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                                   Affirmed.


ISSUED: June 27, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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