                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 21, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RAYMOND DUNCAN,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0868 (BOR Appeal No. 2048145)
                   (Claim No. 2011023592)

BAYLOR MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Raymond Duncan, by Reginald D. Henry and Rodney A. Skeens, his attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Baylor
Mining, Inc., by Timothy E. Huffman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 5, 2013, in
which the Board affirmed a February 25, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 30,
2011, decision granting Mr. Duncan 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. Duncan worked as a coal miner for Baylor Mining, Inc. On January 12, 2011, a
boulder fell against Mr. Duncan’s right side, injuring his pelvis and lower back. Mr. Duncan was
treated at Raleigh General Hospital and diagnosed with a crush injury of several lumbar
vertebrae. Mr. Duncan was also treated for urinary dysfunction related to the crush injury. The
claims administrator held the claim compensable for a fracture of lumbar vertebrae and a sprain
of the lumbar spine. Following this decision, Mr. Duncan was treated by Barry Vaught, M.D.,
who believed that he had a diffuse nerve injury to his pelvis. Dr. Vaught conducted an
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electromyography (EMG) and a nerve conduction study which showed evidence of deep
peroneal neuropathy. However, Dr. Vaught found that there was good continuity of the nerve
supply, and he expected that Mr. Duncan would recover. Paul Bachwitt, M.D., then evaluated
Mr. Duncan and found that he had reached his maximum degree of medical improvement related
to the compensable injury. Dr. Bachwitt determined that Mr. Duncan had 15% whole person
impairment under the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) for his L3, L4, and L5 vertebrae fractures. Dr. Bachwitt also found
that Mr. Duncan had 1% impairment for nerve sensory deficits. He then adjusted his impairment
rating to 8% to fit within Lumbar Category II of West Virginia Code of State Rules § 85-20-C
(2006). On September 30, 2011, the claims administrator granted Mr. Duncan an 8% permanent
partial disability award based on Dr. Bachwitt’s recommendation. Dr. Vaught then performed
another EMG of Mr. Duncan’s lower extremities because he continued to experience pain in his
right hip. The study revealed good continuity of the nerve supply and interval improvement in
the nerves affected by the compensable injury. Robert B. Walker, M.D., evaluated Mr. Duncan
and determined that he had 13% whole person impairment for his vertebrae fractures under the
American Medical Association’s Guides and Lumbar Category III of West Virginia Code of
State Rules § 85-20-C. Dr. Walker also found that Mr. Duncan had 9% impairment for station
and gait problems as well as 5% impairment for urinary bladder dysfunction. Dr. Walker
combined these impairment ratings and determined that Mr. Duncan had 25% whole person
impairment related to the compensable injury. Prasadarao B. Mukkamala, M.D., also evaluated
Mr. Duncan. He determined that Mr. Duncan had 8% whole person impairment related to his
three vertebrae fractures under the American Medical Association’s Guides and Lumbar
Category II of West Virginia Code of State Rules § 85-20-C. On February 25, 2013, the Office
of Judges affirmed the claims administrator’s decision. The Board of Review affirmed the Order
of the Office of Judges on August 5, 2013, leading Mr. Duncan to appeal.

        The Office of Judges concluded that Mr. Duncan was entitled to an 8% permanent partial
disability award related to the January 12, 2011, compensable injury. In reaching this
determination, the Office of Judges relied on the evaluations of Dr. Bachwitt and Dr.
Mukkamala. The Office of Judges also considered the evaluation of Dr. Walker, but it found that
Dr. Walker’s recommendation of a higher impairment rating to account for Mr. Duncan’s station
and gait problems as well as his urinary dysfunction was not supported by the record. The Office
of Judges determined that there was no evidence that Mr. Duncan continued to experience any
disability related to station and gait problems or urinary dysfunction symptoms. The Office of
Judges also pointed out that both Dr. Bachwitt and Dr. Mukkamala found that Mr. Duncan’s gait
was normal. 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. Mr. Duncan has not demonstrated that he is entitled to any greater than an 8% permanent
partial disability award related to his January 12, 2011, injury. Dr. Bachwitt and Dr. Mukkamala
adequately evaluated the compensable conditions of the claim under the American Medical
Association’s Guides and West Virginia Code of State Rules § 85-20-C. The Office of Judges
was justified in basing Mr. Duncan’s permanent partial disability award on their evaluations. The
Office of Judges also provided a sufficient rationale for not relying on Dr. Walker’s opinion. The
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evidence in the record does not support Dr. Walker’s significantly higher impairment
recommendation. Although Mr. Duncan had problems walking and symptoms of urinary
dysfunction immediately after the date of the compensable injury, there is no evidence in the
record that he continues to suffer from these disabilities. The evidence of temporary gait and
urinary problems, which are apparent in the record, are not sufficient to justify Dr. Walker’s
finding of additional permanent impairment. The inconsistency of Dr. Walker’s recommendation
with the medical evidence in the record sufficiently undermined his credibility.

        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: October 21, 2014

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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