                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 24, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RICHARD L. BROWN,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1408 (BOR Appeal No. 2045710)
                   (Claim No. 2007213378)

UNITED PARCEL SERVICE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Richard L. Brown, by Gregory S. Prudich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. United Parcel Service, Inc., by
Jeffrey B. Brannon, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 14, 2011, in
which the Board affirmed a March 14, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 2, 2009,
decision granting Mr. Brown a 2% permanent partial disability award in addition to his prior 1%
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. Brown was employed by the United Parcel Service, Inc., as a driver on November 8,
2006, when he injured his right shoulder pushing a large package onto a truck. The claims
administrator approved his claim for medical expenses on a no-loss basis for a right
coracoclavicular ligament sprain and granted him a 1% permanent partial disability award, based
on the evaluation of Dr. Grady. Mr. Brown was then granted authorization for arthroscopic repair
of his right shoulder, which was performed by Dr. Morgan, on March 18, 2009. Following the
surgery, the claims administrator requested that Dr. Grady re-evaluate Mr. Brown’s whole
                                                1
person impairment. Dr. Grady determined that Mr. Brown had a 5% right upper extremity
impairment for loss of range of motion which translated into a 3% whole body impairment based
on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993). Based on Dr. Grady’s report the claims administrator granted Mr. Brown an additional
2% permanent partial disability award for a total of 3% permanent partial disability. The Office
of Judges and the Board of Review affirmed the decision of the claims administrator on March
14, 2011, and September 14, 2011, respectively, leading Mr. Brown to appeal.

         The Office of Judges found by a preponderance of the evidence that Mr. Brown has 3%
whole person impairment as a result of his compensable injury. The Office of Judges concluded
that, since Mr. Brown had previously been granted a 1% permanent partial disability award, the
claims administrator was correct to grant Mr. Brown an additional 2% permanent partial
disability award. In making its determination, the Office of Judges relied upon the reports of Dr.
Grady and Dr. Mukkamala. The Office of Judges found that both reports made consistent factual
determinations and impairment recommendations. Both reports stated that Mr. Brown had equal
bilateral grip strength and found no instability or crepitus in the right shoulder. Both doctors
found that Mr. Brown had 3% whole body impairment based on his compensable injury.
Although the Office of Judges considered the report of Dr. Poletajev, who recommended a 9%
whole person impairment rating, it found the report unreliable. The Office of Judges found that
Dr. Poletajev’s report was inconsistent with the weight of the medical evidence and the other
doctor’s reports.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on September 14, 2011. We agree with the Order of the Board of Review and the reasoning of
the Office of Judges. The Office of Judges was within its discretion in weighing the
preponderance of the evidence and its determination is supported by the record as a whole. The
Board of Review was correct to affirm its Order.

        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 24, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II


                                                2
