                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

STEVEN M. LESTER,                                                                      FILED
Claimant Below, Petitioner                                                             July 9, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 19-0096 (BOR Appeal No. 2053223)                                         OF WEST VIRGINIA

                   (Claim No. 2016017123)

DAVID STANLEY CONSULTANTS, LLC,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Steven M. Lester, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). David Stanley
Consultants, LLC did not file a response to the petition for appeal.

        The issue on appeal is the amount of permanent partial disability awarded in the claim. The
claims administrator granted a 5% permanent partial disability award on January 24, 2017. On
August 2, 2018, the Workers’ Compensation Office of Judges (“Office of Judges”) reversed the
5% award granted by the claims administrator and awarded Mr. Lester a 9% permanent partial
disability award. This appeal arises from the Board of Review’s Order dated January 7, 2019, in
which the Board reversed the decision of the Office of Judges and reinstated the 5% permanent
partial disability award granted by the claims administrator.

       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.

        On January 5, 2016, Mr. Lester fractured his right wrist when he slipped while putting a
roof bolt up into the mine top. He was treated at Welch Community Hospital, at which time an
Employees’ and Physicians’ Report of Occupational Injury form was completed, which listed the
diagnosis as right wrist fracture. By Order dated January 25, 2016, the claim was held compensable
for right wrist fracture, scaphold fracture, and ulnar styloid process. Subsequently, by Order dated
June 6, 2016, the claims administrator added De Quervain’s tenosynovitis and right carpal tunnel
syndrome as compensable conditions. Mr. Lester underwent a right wrist arthroscopy with
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debridement of the peripheral triangular fibrocartilage complex tear and ulnocarpal synovectomy
together with a right carpal tunnel release.

        The claims administrator referred Mr. Lester to Joseph Grady, M.D., who prepared a report
dated January 10, 2017. Dr. Grady opined that Mr. Lester had 8% upper extremity impairment that
he converted to 5% whole person impairment. Based upon Dr. Grady’s opinion, the claims
administrator granted Mr. Lester a 5% permanent partial disability award on January 24, 2017. Mr.
Lester protested the claims administrator’s decision.

        In support of his protest, Mr. Lester submitted the independent medical evaluation report
of Robert Walker, M.D., dated May 12, 2017. Dr. Walker found range of motion abnormalities of
Mr. Lester’s right wrist and noted the his thumb lacked adduction of three centimeters. Dr. Walker
identified 18% upper extremity impairment under the range of motion model and 3% for the right
thumb. Dr. Walker combined the two percentages for a total of 20% upper extremity impairment
which converted to 12% whole person impairment under the American Medical Associations
Guides to the Evaluation of Permanent Impairment (4th ed. 1993).

        Michael Kominsky, D.C., prepared an independent medical evaluation report dated August
15, 2017, on behalf of Mr. Lester. Dr. Kominsky conducted a range of motion study of the right
wrist revealing thirty degrees flexion, twenty-five extension, fifteen degrees radial deviation, and
fifteen degrees ulnar deviation. The neurological examination revealed diminishment with regard
to the medial ulnar and radial nerves. Dr. Kominsky reported 15% upper extremity impairment for
the compensable components of the claim, which he converted to 14% whole person impairment
under the Guides.

       The Employer referred Mr. Lester to Prasadarao B. Mukkamala, M.D, who prepared an
independent medical evaluation report dated January 4, 2018. Dr. Mukkamala concluded, after
reviewing Mr. Lester’s clinical history and performing a physical examination, that Mr. Lester had
reached his maximum degree of medical improvement. Dr. Mukkamala found that Mr. Lester
exhibited fine motor dexterity in both hands and no loss of range of motion for the joints of his
upper extremities. Based upon his examination, Dr. Mukkamala concluded that Mr. Lester had 8%
upper extremity impairment, which converts to 5% whole person impairment under the Guides.

        The claim was submitted to the Office of Judges for consideration of the opinions
expressed by the evaluators in the record. By decision dated August 2, 2018, the Office of Judges
reversed the 5% permanent partial disability award of January 24, 2017, granted by the claims
administrator. The Office of Judges found that no one report within the record agreed on any more
than two out of four objective findings with regard to the range of motion study. All reports were
deemed to be of equal probative value for the assessment of whole person impairment for the loss
of range of motion in Mr. Lester’s wrist. The Office of Judges adopted Dr. Kominsky’s whole
person impairment recommendation for the purposes of determining that Mr. Lester is entitled to
a higher percentage of impairment. Accordingly, the Office of Judges granted a 9% permanent
partial disability award, which represented an increase of 4% in permanent partial disability
benefits.

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        The Board of Review disagreed with the decision of the Office of Judges. In its Order dated
January 7, 2019, the Board of Review noted that the Office of Judges granted Mr. Lester a 9%
permanent partial disability award, which was not recommended by any of the physicians in the
record. This Court has consistently maintained that the Commissioner is to make permanent partial
disability awards solely on the basis of the doctor’s impairment evaluation. The Board of Review
concluded that Mr. Lester is not entitled to the additional award granted by the Office of Judges.
The final decision of the Office of Judges dated August 2, 2018, was reversed and vacated. The
Board of Review reinstated the January 24, 2017, Order of the claims administrator that granted
Mr. Lester a 5% permanent partial disability award.

        After review, we agree with the decision of the Board of Review. Although the Office of
Judges determined that all of the medical reports were of equal probative value with regard to the
assessment of whole person impairment, the Board of Review correctly found that the Office of
Judges incorrectly granted an amount of impairment not recommended by any evaluating
physician. On January 10, 2017, Dr. Grady found 5% impairment. On May 12, 2017, Dr. Walker
found 12% impairment. Dr. Kominsky recommended 14% whole person impairment in his report
of August 15, 2017. Dr. Mukkamala found 5% impairment according to his report dated January
4, 2018. Because the Office of Judges did not grant an award based upon the findings of one of
the evaluators of record, the Board of Review did not err in reinstating the 5% award granted by
the claims administrator on January 24, 2017.

         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.

                                                                                          Affirmed.



ISSUED: July 9, 2020

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




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