                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 29, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CHESTER BREWER,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0517 (BOR Appeal No. 2047887)
                   (Claim No. 2010117300)

BRIDGESTONE AMERICA’S TIRE OPERATIONS, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Chester Brewer, by John Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Bridgestone America’s Tire Operations,
LLC, by Sean Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 24, 2013, in
which the Board affirmed a November 16, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 1, 2010,
decision which granted the claimant an 8% 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. Brewer, a tire man and mechanic, injured his right shoulder while using a jack to lift
a truck on October 22, 2009. His claim was held compensable for right shoulder strain. Mr.
Brewer underwent three independent medical evaluations in order to determine the amount of
permanent impairment he sustained as a result of his injury. Joseph Grady, M.D., performed an
independent medical evaluation on August 31, 2010, in which he diagnosed status post right
shoulder surgery and manipulation with chronic myofascial tendonitis. Mr. Brewer was
determined to be at maximum medial improvement and using the American Medical
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Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. Grady
assessed 8% whole person impairment. Based upon his report, the claims administrator granted
Mr. Brewer an 8% permanent partial disability award on December 1, 2010.

        Victor Poletajev, D.C., performed an independent medical evaluation on December 19,
2011. He assessed 20% impairment for range of motion loss, 4% impairment for muscle strength
loss, 10% impairment for acromioplasty, and 1% impairment for surgical scarring for a
combined total of 20% whole person impairment. A final independent medical evaluation was
performed by Prasadarao Mukkamala, M.D., on July 31, 2012. He assessed 8% whole person
impairment for the right shoulder. He opined that Dr. Poletajev’s report was not accurate because
his range of motion findings were extremely exaggerated and he found 4% impairment for
weakness that Dr. Mukkamala did not find. Also, Dr. Poletajev calculated 10% upper extremity
impairment for acromioplasty which is not supported by the American Medical Association’s
Guides. Lastly, he assessed 1% impairment for the surgical scar which was asymptomatic and
did not qualify for a rating.

        The Office of Judges affirmed the claims administrator’s decision in its November 16,
2012, Order. Significant weight was placed on the findings of Dr. Grady and Dr. Mukkamala
who both assessed 8% whole person impairment. Neither physician found true evidence of loss
of strength whereas Dr. Poletajev assessed 4% impairment for it. Dr. Poletajev’s 20%
impairment assessment was found to be inconsistent with the findings of Dr. Grady and Dr.
Mukkamala. Additionally, Dr. Poletajev’s finding of 1% impairment for scarring was determined
to be clearly inconsistent with Dr. Grady’s and Dr. Mukkamala’s reports and the evidence of
record because the scar is asymptomatic. The Office of Judges found that the greatest difference
in impairment findings was Dr. Poletajev’s rating of 10% impairment for acromioplasty. Dr.
Mukkamala opined in his report that the rating was inconsistent with the American Medical
Association’s Guides and the Office of Judges agreed. Dr. Poletajev’s report was therefore given
less evidentiary weight. Dr. Mukkamala’s report was afforded the most weight because it was the
most recent in time and was supported by Dr. Grady’s findings.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its April 24, 2013, decision. We agree with the reasoning and
conclusions of the Board of Review. The evidentiary record indicates that Mr. Brewer sustained
no more than 8% permanent impairment as a result of his compensable injury.

        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: September 29, 2014


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




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