                             STATE OF WEST VIRGINIA

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

Claimant Below, Petitioner

vs.)   No. 13-0183 (BOR Appeal No. 2047541)
                   (Claim No. 2010133588)

BRAYMAN CONSTRUCTION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Freddie Browning, by Wendle D. Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Brayman Construction, by Lisa
Warner Hunter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 25, 2013, in
which the Board affirmed a July 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 23, 2011,
decision granting Mr. Browning a 0% 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. Browning worked for Brayman Construction. On April 29, 2010, Mr. Browning
developed low back pain after pulling on a pump. The claims administrator held his claim
compensable. Following the injury, Mohammed Ranavaya, M.D., evaluated Mr. Browning and
found that he had no impairment related to this injury. On February 23, 2011, the claims
administrator granted Mr. Browning a 0% permanent partial disability award based on Dr.
Ranavaya’s evaluation. Bruce A. Guberman, M.D., then evaluated Mr. Browning and determined
that he had 13% whole person impairment under the American Medical Association’s Guides to
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the Evaluation of Permanent Impairment (4th ed. 1993). Dr. Guberman found that Mr. Browning
had previously received a permanent partial disability award related to a March 7, 2005, lumbar
strain and apportioned 9% of Mr. Browning’s impairment to his prior injury. Dr. Guberman then
adjusted the remaining 4% impairment to a 5% whole person impairment rating to fit within
Lumbar Category II of West Virginia Code of State Rules § 85-20-C (2006). Prasadarao B.
Mukkamala, M.D., also evaluated Mr. Browning and determined that he had 14% impairment
under the American Medical Association’s Guides. Dr. Mukkamala adjusted this rating to 8% to
fit within Lumbar Category II of West Virginia Code of State Rules § 85-20-C. Dr. Mukkamala
noted that Mr. Browning had received a prior permanent partial disability award on March 7,
2005, and apportioned the entire impairment rating related to Mr. Browning’s lumbar spine to
this prior injury. On July 19, 2012, the Office of Judges affirmed the claims administrator’s
decision. The Board of Review affirmed the Order of the Office of Judges on January 25, 2013,
leading Mr. Browning to appeal.

        The Office of Judges concluded that the evidence established that Mr. Browning had
been fully compensated for his lumbar spine injury and was not entitled to any additional
permanent partial disability award. The Office of Judges based this determination on the
evaluations of Dr. Ranavaya and Dr. Mukkamala. The Office of Judges also considered the
independent medical evaluation of Dr. Guberman. However, the Office of Judges determined
that Dr. Guberman incorrectly apportioned for Mr. Browning’s prior 8% permanent partial
disability award prior to adjusting his rating to fit within Lumbar Category II of West Virginia
Code of State Rules § 85-20-C. The Office of Judges found that Dr. Guberman’s impairment
rating would provide Mr. Browning with a double recovery for the same disability. The Board of
Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Browning has not demonstrated that he is entitled to any additional permanent
partial disability award. Dr. Mukkamala’s independent medical evaluation shows that Mr.
Browning has 8% impairment of his lumbar spine. Dr. Mukkamala properly evaluated Mr.
Browning’s disability under the American Medical Association’s Guides and West Virginia
Code of State Rules § 85-20-C. Mr. Browning has previously received an 8% permanent partial
disability award related to his March 7, 2005, back strain. Dr. Mukkamala also properly
apportioned for his prior award and determined that Mr. Browning has already been fully
compensated for his injuries. The Office of Judges was also justified in not relying on Dr.
Guberman’s impairment assessment. Dr. Guberman incorrectly apportioned for Mr. Browning’s
prior permanent partial disability award before adjusting his American Medical Association’s
Guides impairment rating to fit within West Virginia Code of State Rules § 85-20-C. Dr.
Guberman’s impairment rating would have provided Mr. Browning with an additional recovery
beyond what is supported by the evidence in the record.

        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.

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                                   Affirmed.

ISSUED: June 27, 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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