                             STATE OF WEST VIRGINIA

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

vs.)   No. 16-0276 (BOR Appeal No. 2050788)
                   (Claim No. 2012036325)

MAXWELL & KEYSER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Johnny Kennedy, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review.

         The issue on appeal is the appropriate amount of a permanent partial disability award to
be granted to Mr. Kennedy as a result of the compensable injury in this claim. This appeal
originated from the April 10, 2014, claims administrator’s decision granting a 6% permanent
partial disability award. In its September 1, 2015, Order, the Workers’ Compensation Office of
Judges reversed the decision and granted a 10% permanent partial disability award. The Board of
Review’s Final Order dated February 22, 2016, affirmed the Order of the Office of Judges. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Kennedy, a plumber, sustained an injury to his neck, shoulder, and upper back while
working underneath a sink on May 7, 2012. Upon trying to remove a nut, it suddenly gave way,
causing Mr. Kennedy to jerk. He felt immediate pain in his left arm and pain in his neck and
back the next morning. On June 1, 2012, the claims administrator held the claim compensable for

                                                1
neck, upper back, and left shoulder sprains/strains. Mr. Kennedy underwent three independent
medical evaluations to determine his permanent partial disability.

        On March 4, 2014, Paul Bachwitt, M.D., performed an independent medical evaluation of
Mr. Kennedy. Dr. Bachwitt detailed Mr. Kennedy’s medical history which included a 2012 MRI
revealing a C3-4 disc protrusion and a left paracentral protrusion at C5-6 with foraminal stenosis.
At a previous exam, Dr. Bachwitt had diagnosed Mr. Kennedy with a cervical strain/sprain
superimposed on pre-existing degenerative changes and a left shoulder sprain. Dr. Bachwitt
examined Mr. Kennedy and found him to be at maximum medical improvement. Upon
examination, there was no clinical finding of a disc lesion. Dr. Bachwitt believed there was a
causal relationship between the cervical and shoulder sprains/strains and the May 7, 2012,
compensable injury. However, no further treatment was necessary. In an addendum written on
March 19, 2014, Dr. Bachwitt recommended 4% impairment for the cervical spine and 6%
impairment for motion restriction for a total of 10% whole person impairment. Dr. Bachwitt
apportioned half of that to pre-existing degenerative changes. For the left shoulder, Dr. Bachwitt
found 6% impairment for the upper extremity. He apportioned 5% to pre-existing conditions. Dr.
Bachwitt’s total combined recommendation was 6% whole person impairment. The claims
administrator granted a 6% permanent partial disability award based on Dr. Bachwitt’s report.

        On January 15, 2015, Mr. Kennedy underwent an independent medical evaluation by
Bruce Guberman, M.D. Dr. Guberman determined Mr. Kennedy had reached maximum medical
improvement. He assigned Mr. Kennedy 13% whole person impairment for the cervical spine
and 4% for the left shoulder. His total recommendation was 18% whole person impairment.
Finally, Mr. Kennedy underwent an independent medical evaluation by Prasadarao Mukkamala,
M.D., on May 5, 2015. Dr. Mukkamala found 8% impairment for the cervical spine and 2% for
the left shoulder. He recommended a total of 10% whole person impairment. Dr. Mukkamala
noted that Dr. Guberman’s report was flawed because he rated Mr. Kennedy based on a
neurological deficit when there was no objective evidence of record to support such a diagnosis.

        On September 1, 2015, the Office of Judges issued an Order reversing the claims
administrator’s decision. The Office of Judges found that there was essentially no difference
between the findings of Dr. Bachwitt and Dr. Mukkamala except that Dr. Bachwitt apportioned
for pre-existing conditions. The Office of Judges determined that the issue would be resolved in
favor of Mr. Kennedy pursuant to West Virginia Code §23-4-1g (2005). The Office of Judges
found that Dr. Guberman’s report was less reliable because no other objective evidence was
submitted to support a finding of cervical spine radiculopathy. This cast doubt on his report and
the Office of Judges ultimately awarded Mr. Kennedy a 10% 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 February 22, 2016.

       We disagree with the reasoning and conclusions of the Office of Judges as affirmed by
the Board of Review. The Office of Judges improperly applied West Virginia Code §23-4-1g,
which states that if after weighing all the evidence there is a finding that an equal amount of
evidentiary weight exists favoring conflicting matters, the resolution most consistent with the
claimant’s position will be adopted. While Dr. Bachwitt and Dr. Mukkamala have seemingly
                                                2
identical recommendations regarding an impairment rating, they do not merit identical
evidentiary weight. Dr. Mukkamala stated in his independent medical evaluation that he did not
find any errors in Dr. Bachwitt’s impairment rating, noting that the only difference was that Dr.
Bachwitt chose to apportion the impairment while Dr. Mukkamala chose not to apportion the
impairment. It remains unclear what the true extent of Mr. Kennedy’s pre-existing conditions are
in relation to his compensable injury.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded for further development of the evidence
regarding the extent of Mr. Kennedy’s pre-existing conditions in relation to his compensable
injury.



                                                                   Reversed and Remanded.

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




                                               3
