                             STATE OF WEST VIRGINIA

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

Claimant Below, Petitioner

vs.)   No. 13-0322 (BOR Appeal No. 2047504)
                   (Claim No. 2010134069)


SPARTAN MINING COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Brenford Hudson, by Samuel F. Hanna, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Spartan Mining Company, by Sean
Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 27, 2013, in
which the Board affirmed a July 10, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s January 27, 2011,
decision granting a 0% permanent partial disability award. The Office of Judges granted Mr.
Hudson a 3% 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. Hudson was an employee for Spartan Mining Company on May 12, 2010, when a
piece of mining equipment ran over his hip and left lower extremity. The claims administrator
used a report from Paul Bachwitt, M.D., to deny Mr. Hudson a permanent partial disability
award. Mr. Hudson protested this decision.

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        The Office of Judges reviewed separate reports from Dr. Bachwitt, Bruce Guberman,
M.D., and Prasadarao B. Mukkamala, M.D. The Office of Judges concluded Mr. Hudson has 2%
impairment based upon range of motion deficits of the hip, which was consistent with Dr.
Mukkamala’s and Dr. Guberman’s reports. The Office of Judges also concluded that Mr.
Hudson was entitled to 1% whole person impairment for the scarring on his hip. Dr. Guberman
found 1% whole person impairment and Drs. Mukkamala and Bachwitt arrived at a 0%
impairment rating. The Office of Judges found that Dr. Bachwitt’s report was not credible
because he failed to reference any type of scarring in his report. The Office of Judges then used
the evidentiary standard in West Virginia Code § 23-4-1g (2003) to arrive at the conclusion that
1% impairment for scarring was warranted. In regard to the pelvic classification, Dr. Guberman
found 15% whole person impairment while Drs. Mukkamala and Bachwitt found 0%
impairment. The Office of Judges concluded that Drs. Mukkamala and Bachwitt’s reports were
persuasive and used the 0% impairment rating for Mr. Hudson’s pelvic fractures. The Office of
Judges then combined the 2% range of motion impairment found by Drs. Guberman and
Mukkamala and the 1% impairment based upon scarring to arrive at 3% whole person
impairment. Accordingly, the Office of Judges reversed the claims administrator’s decision to
award 0% permanent partial disability and awarded 3% permanent partial disability. The Board
of Review adopted the findings of the Office of Judges and affirmed its Order.

        The Office of Judges was justified in relying on Drs. Guberman and Mukkamala for the
2% impairment because they both had the necessary information at hand and agreed Mr. Hudson
was 2% disabled as a result of the range of motion deficits in his hip. The Office of Judges was
not in error to award 1% permanent partial disability based on scarring. Dr. Bachwitt’s report
was found to be unreliable in this regard because his report did not reference scarring. The Office
of Judges concluded pursuant to the evidentiary standard in West Virginia Code § 23-4-1g, that
Dr. Guberman’s recommendation should be used. Since Dr. Guberman’s report was the most
consistent with Mr. Hudson’s position, it was not in error for the Office of Judges to award 1%
permanent partial disability based upon Dr. Guberman’s report. Finally, it was not in error for the
Office of Judges to conclude that Dr. Guberman’s pelvic classification finding of 15%
impairment could not be used because his report lacked any specific discussion on how Mr.
Hudson’s symptoms correlate to his placement on the pelvic classification scale. The consistent
reports of Drs. Bachwitt and Mukkamala show that Mr. Hudson should have no impairment
based upon his pelvic fractures.

        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: June 27, 2014


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CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman

Justice Brent D. Benjamin, disqualified




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