                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
WILLIAM R. SMITH,                                                                   July 6, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0699 (BOR Appeal No. 2051079)
                   (Claim No. 2014028705)

HUNTINGTON ALLOYS CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner William R. Smith, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Huntington Alloys Corporation, by
Jillian L. Moore, its attorney, filed a timely response.

        The issue on appeal is the appropriate amount of a permanent partial disability award to
be granted to Mr. Smith as a result of the compensable injury in this claim. This appeal
originated from the August 12, 2014, claims administrator’s decision granting no permanent
partial disability award. In its January 15, 2016, Order, the Workers’ Compensation Office of
Judges affirmed the decision. The Board of Review’s Final Order dated June 24, 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 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.

         William R. Smith, a pipe fitter, was injured in the course of his employment on March
31, 2014, when he fell through a walkway and landed two feet below, striking his back on a
railing. On April 22, 2014, the claims administrator held the claim compensable for thoracic and
lumbar sprains. Mr. Smith underwent three independent medical evaluations in an effort to
assess any permanent impairment arising from the compensable injury.

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        It is noteworthy that Mr. Smith has a significant history of prior back injuries as well as
degenerative conditions. On January 6, 2010, Mr. Smith sustained a compensable injury to his
back in a prior claim. The claim was held compensable for contusions of the back and elbow;
knee, leg, and neck sprains; and thoracic and lumbar sprains. An MRI taken shortly after the
accident revealed degenerative disc signal from L1-2 through L5-S1, inclusive. At L1-2 and L2­
3, there were mild bilateral facet degenerative changes and mild to moderate disc bulging with
moderate canal stenosis. At L2-3, there was also a small annular tear centrally. At L3-4, there
was mild facet degenerative change but no significant disc bulging or canal stenosis. The claims
administrator granted Mr. Smith a 16% permanent partial disability award, which included 8%
for the lumbar sprain and 0% for the thoracic sprain.

        Mr. Smith underwent his first independent medical evaluation in the instant claim on
June 16, 2014. Michael Condaras, D.C., found that Mr. Smith had not yet reached maximum
medical improvement. It was his opinion that Mr. Smith would be at maximum medical
improvement following three to four weeks of chiropractic care at three visits per week.
Although Dr. Condaras determined that Mr. Smith had not reached maximum medical
improvement, he still proceeded to provide an impairment rating. He assessed 0% whole person
impairment for the thoracic spine. Regarding the lumbar spine, he assessed 10% whole person
impairment but noted that Table 75 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) would not be used due to Mr. Smith’s prior
injury and advanced degenerative changes. Dr. Condaras adjusted the impairment to 8% under
West Virginia Code of State Rules §85-20-C (2006). On August 12, 2014, the claims
administrator granted Mr. Smith no award based on Dr. Condaras’s report, noting that because
Mr. Smith previously received an 8% permanent partial disability award for the lumbar spine, no
additional award would be granted.

        Mr. Smith underwent a second independent medical evaluation performed by Bruce
Guberman, M.D., on October 23, 2014. Dr. Guberman’s impression was chronic, post-traumatic
strain of the lumbar spine and thoracic spine. Upon physical examination, he noticed range of
motion abnormalities in both the thoracic and lumbar spine. Dr. Guberman determined Mr.
Smith was at maximum medical improvement and no further treatment was necessary. He
assessed 5% whole person impairment for the lumbar spine and 7% for the range of motion
abnormalities, which combined and then adjusted to 8%. Noting that Mr. Smith previously
received an 8% impairment rating for his prior lumbar spine injury occurring in 2010, Dr.
Guberman determined no additional impairment of the lumbar spine was recommended.
Regarding the thoracic spine, Dr. Guberman assessed 2% whole person impairment. He assessed
3% for the range of motion abnormalities, which combined to 5%. Because Mr. Smith had not
previously received an award for the thoracic spine, Dr. Guberman concluded a total of 5%
whole person impairment for the compensable injury was appropriate.

       On August 14, 2014, Mr. Smith underwent an independent medical evaluation performed
by Prasadarao Mukkamala, M.D. Dr. Mukkamala diagnosed thoracic and lumbar sprains. He
noted that Mr. Smith had pre-existing degenerative spondyloarthropathy, which was not
compensable. Dr. Mukkamala concluded that Mr. Smith had reached maximum medical
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improvement and provided an impairment rating. He found there was no range of motion
impairment and assessed 0% whole person impairment for the thoracic spine. He assessed 9%
for the lumbar spine, which adjusted to 8% per West Virginia Code of State Rules §85-20-C. As
Mr. Smith already received 8% for a prior back injury, Dr. Mukkamala determined he was fully
compensated for his lumbar spine.

        On January 15, 2016, the Office of Judges affirmed the claims administrator’s decision
granting no permanent partial disability award. The Office of Judges began by noting that the
sole issue is the impairment rating for the thoracic spine. Mr. Smith’s evidence showed a finding
of 8% for the lumbar spine that had already been fully compensated. Regarding the instant claim,
an x-ray report of the thoracic spine revealed no acute findings but mild multilevel degenerative
changes were noted. The Office of Judges reviewed the three independent medical evaluation
reports and ultimately found that Dr. Mukkamala’s report was the most convincing. Dr.
Condaras rated Mr. Smith prior to finding he had reached maximum medical improvement,
which is not standard practice. Dr. Guberman’s report was not found to be persuasive because he
failed to take into account the degenerative and pre-existing conditions noted to be present in x-
rays, as well as noted by the other evaluators. Further, Dr. Guberman’s evaluation took place
between those of the other evaluators yet Dr. Guberman was the only one to assess an
impairment rating due to range of motion abnormalities. For the stated reasons, the Office of
Judges found that Dr. Mukkamala’s opinion was the most reliable and affirmed the claims
administrator’s decision. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order on June 24, 2016.

       We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. Mr. Smith has a documented history of degenerative changes in the spine
which Dr. Guberman failed to consider in his evaluation. Dr. Guberman additionally assessed
impairment for range of motion abnormalities which no other medical professional of record has
corroborated. Dr. Mukkamala’s impairment rating is persuasive and supported by the evidence.

        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: July 6, 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

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