                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TAMMI L. CONNARD,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0440 (BOR Appeal No. 2047678)
                   (Claim No. 2010101551)

BURLINGTON UNITED METHODIST FAMILY SERVICES,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Tammi L. Connard, by John H. Shumate Jr., her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Burlington United Methodist
Family Services, by Marion E. Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 1, 2013, in which
the Board affirmed a September 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 23,
2010, decision granting Ms. Connard no 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.

        Ms. Connard worked for Burlington United Methodist Family Services as a shift
supervisor. On July 30, 2009, Ms. Connard was hit in the jaw by a struggling patient. The claims
administrator held her claim compensable for a sprain of the jaw and an unspecified injury to the
face and neck. Randall Short, M.D., then reviewed Ms. Connard’s records and determined that
there did not appear to be any impairment related to her jaw. He noted that she had previously
undergone surgery on the temporomandibular joints (TMJ) of her jaw in 2007 and 2008. Dr.
Short found that her jaw joints were replaced with prosthetic joints and this condition was not
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related to her compensable injury. On December 23, 2010, the claims administrator granted Ms.
Connard no permanent partial disability award related to her jaw injury. Yogesh Chand, M.D.,
then performed an independent medical evaluation of Ms. Connard. Dr. Chand believed that Ms.
Connard had not reached her maximum degree of medical improvement, but he found that she
had 19% whole person impairment under the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993). Dr. Chand found that she had 7%
impairment because she could only masticate semi-solid food, 10% impairment for trigeminal
neuralgia pain, and 3% impairment for abscess teeth. Prasadarao B. Mukkamala, M.D., also
evaluated Ms. Connard, and he determined that her compensable injury had fully resolved. He
found that she had no impairment or continuing symptoms related to her compensable
conditions. Dr. Mukkamala determined that there was no evidence of trigeminal neuralgia. He
also found that Ms. Connard’s masticating problems were related to her pre-existing TMJ
condition and surgeries. On September 19, 2012, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
April 1, 2013, leading Ms. Connard to appeal.

        The Office of Judges concluded that the grant of no permanent partial disability award for
the compensable jaw injury should be affirmed. The Office of Judges pointed out that both Dr.
Short and Dr. Mukkamala found that Ms. Connard had no impairment of the jaw related to her
July 30, 2009, injury. The Office of Judges considered the opinion of Dr. Chand, but it did not
rely on his impairment calculation. The Office of Judges determined that Dr. Chand provided
impairment ratings for trigeminal neuralgia pain and abscessed teeth even though they were not
compensable conditions of the claim. The Office of Judges also found that Ms. Connard’s
inability to masticate solid foods was not related to the compensable injury but to her pre­
existing TMJ condition. The Office of Judges determined that Ms. Connard should not receive
any permanent partial disability award for this pre-existing condition. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Connard has not demonstrated that she is entitled to any permanent partial disability
award in relation to her July 30, 2009, jaw strain and face and neck injury. The evaluation of Dr.
Mukkamala demonstrates that Ms. Connard has no whole person impairment related to her
compensable injury. Dr. Mukkamala recognized that Ms. Connard had some jaw related
disability which prevented her from chewing solid foods. However, Dr. Mukkamala attributed
this disability to her pre-existing TMJ condition. Dr. Mukkamala provided a thorough evaluation
of Ms. Connard’s impairment, and the Office of Judges was within its discretion in relying on his
opinion. The Office of Judges was also justified in not relying on Dr. Chand’s impairment
calculation because his impairment rating would have compensated Ms. Connard for non­
compensable conditions.

        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 Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Brent D. Benjamin
Justice Menis E. Ketchum




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