                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

RICHARD S. THOMAS,
                                                                                        FILED
Claimant Below, Petitioner                                                             July 31, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.)   No. 19-0558 (BOR Appeal No. 2053770)                                          OF WEST VIRGINIA
                   (Claim No. 2012020301)

PARSLEY ENTERPRISES, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Richard S. Thomas, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Parsley
Enterprises, Inc., by Counsel T. Jonathan Cook, filed a timely response.

        The issue on appeal is permanent total disability. The claims administrator denied a
permanent total disability award on March 31, 2017. The Office of Judges affirmed the decision
in its December 21, 2018, Order. The Order was affirmed by the Board of Review on May 17,
2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Thomas, a former coal miner, completed an application for permanent total disability
benefits on November 18, 2015. He listed his prior permanent partial disability awards as 0.5% for
the left hand and fourth and fifth fingers; 3% for the lumbar spine; 15% for occupational
pneumoconiosis; 30% for the back, neck, hip, and knee; and 10% for the left shoulder.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 12,
2016, in which he assessed the following impairments: 15% for occupational pneumoconiosis, 6%
for the low back/lumbar spine, 5% for the neck/cervical spine, and 4% for the left shoulder for a

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total combined impairment rating of 27%. Dr. Mukkamala opined that Mr. Thomas could perform
light/medium physical demand work and that he was not a candidate for vocational rehabilitation.

       On December 12, 2016, the Permanent Total Disability Review Board released its initial
recommendation that Mr. Thomas’s request for a permanent total disability award be denied. It
found that he failed to show that he sustained at least 50% whole body impairment. The claims
administrator denied Mr. Thomas’s request for a permanent total disability award December 22,
2016. On March 13, 2017, the Permanent Total Disability Review Board issued its final
recommendation that the request for a permanent total disability award be denied. The claims
administrator denied Mr. Thomas’s application for a permanent total disability award on March
21, 2017, because he failed to meet the 50% whole body impairment threshold.

         Robert Walker, M.D., performed an independent medical evaluation on March 18, 2018,
in which he determined that Mr. Thomas had 51% whole person impairment representing 26% for
the spine, 15% for occupational pneumoconiosis, 12% for the left upper extremity, and 11% for
the left lower extremity.

       Dr. Mukkamala performed an independent medical evaluation on June 29, 2018, in which
he assessed the following impairments: 15% for occupational pneumoconiosis, 4% for the low
back/lumbar spine, 4% for the neck/cervical spine, 2% for the left hand, and 4% for the left
shoulder for a total combined impairment rating of 26%. Dr. Mukkamala also submitted an
impairment rating of 32% that did not apportion for Mr. Thomas’s age-related changes. Dr.
Mukkamala opined that Dr. Walker was incorrect to find impairment for the left hip/knee because
the impairment is not related to a compensable injury. At the time of his first evaluation, performed
four years after Mr. Thomas stopped working, Dr. Mukkamala found no impairment in the lower
extremities. He therefore concluded that the impairment that Dr. Walker found in March of 2018
was not work-related.

       David Soulsby, M.D, performed an independent medical evaluation on July 12, 2018, in
which he found that Mr. Thomas had some lower extremity impairment, specifically in the knees,
that was attributable to age-related changes rather than an injury. Dr. Soulsby assessed the
following impairments: 5% for the cervical spine, 6% for the lumbar spine, 1% for the left hand,
9% for the left shoulder, and 15% due to occupational pneumoconiosis. His total impairment
assessment was 32%.

        The Office of Judges affirmed the claims administrator’s denial of a permanent total
disability award on December 21, 2018. It found that the most reliable report of record was that of
Dr. Mukkamala and that Dr. Walker’s report was not sufficiently reliable. Regarding Dr. Walker’s
report, the Office of Judges found that while he used West Virginia Code of State Rules § 85-20,
he did not use the code correctly. For the cervical spine, Dr. Walker placed Mr. Thomas in
Category II, which allows for 8-13% impairment. Dr. Walker then assessed a total of 15%
impairment for the cervical spine, which would indicate Mr. Thomas was in Category III. The
Office of Judges concluded that the evidence does not support such a finding because Category III
requires significant radiculopathy or a vertebral compression fracture. Dr. Walker made the same
errors in regard to his lumbar spine impairment assessment. He assessed 15% lumbar spine
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impairment; however, the evidence indicates Mr. Thomas does not belong in Lumbar Categories
III or IV. The Office of Judges concluded, based on the reports of Drs. Mukkamala and Soulsby,
that Mr. Thomas has 8% lumbar impairment and 8% cervical impairment.

        Regarding the left lower extremity, the Office of Judges found that Dr. Walker’s
impairment assessment was not supported by the evidence of record. Dr. Walker’s assessment
included impairment for the knee and hip. The Office of Judges found that the records show no
significant impairment to either body part. Mr. Thomas sustained a work-related left thigh injury
in 1997. In 1999, Clifford Carlson, M.D., found in an evaluation that left knee range of motion
was normal. In his 2016 evaluation, seventeen years later, Dr. Mukkamala also found normal range
of motion in the left knee. The Office of Judges found that between 1999 and 2016, Mr. Thomas
had no left knee diagnoses or diagnostic testing. For the left hip, the Office of Judges found that
in a 1999 evaluation, Anbu Nadar, M.D., concluded that the compensable 1997 injury resulted in
back strain and a left thigh contusion. In a 1999 evaluation, Dr. Carlson found no left hip
impairment. Following that evaluation, the left hip was not mentioned again until March of 2013,
when Mr. Thomas was seen by Dr. Tao, who noted no significant hip findings. Range of motion
and x-rays were also normal. The Office of Judges ultimately found that Dr. Mukkamala’s 2018
evaluation was the most reliable assessment of left knee and right hip impairment. While Dr.
Mukkamala found impairment, he opined that it was unrelated to a compensable injury.

       The Office of Judges concluded that Mr. Thomas has a total of 32% whole body
impairment, based on Dr. Mukkamala’s 2018 report. Dr. Mukkamala’s report was found to be
more reliable than that of Dr. Soulsby because Dr. Mukkamala had the benefit of examining Mr.
Thomas multiple times over a period of years. The Office of Judges adopted Dr. Mukkamala’s
unapportioned, alternative impairment rating because Dr. Mukkamala made no such
apportionment in his other evaluation conducted two years prior. Because Mr. Thomas failed to
meet the 50% whole body impairment threshold, his request for a permanent total disability award
was denied. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order on May 17, 2019.

        After review, we agree with the conclusion of the Board of Review. Pursuant to West
Virginia Code § 23-4-6(n)(1), in order to receive a permanent total disability award, a claimant
must first show that he or she has received at least 50% in permanent partial disability awards.
Next, the claimant must be evaluated by the reviewing Board and be found to have at least 50%
whole body impairment. While it appears that Mr. Thomas has surpassed the first threshold, he
has failed to show that he sustained at least 50% whole body impairment. The only physician of
record to find that he sustained 50% or more whole body impairment was Dr. Walker, and, as the
Office of Judges found, his report is incorrect and unreliable.

        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: July 31, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:

Justice Margaret L. Workman




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