                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 12, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
EVERETT E. RICE,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1228 (BOR Appeal No. 2047053)
                   (Claim No. 2005016796)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

JMAC LEASING, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Everett E. Rice, by John C. Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Brandolyn N. Felton, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 21, 2012, in
which the Board affirmed a March 21, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 12, 2010,
decision which granted no additional 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.

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        Mr. Rice, a heavy equipment operator, injured his lower back in the course of his
employment when the piece of heavy equipment he was operating backed over a large rock. He
was evaluated by Michael Condaras, D.C., in December of 2004. In that independent medical
evaluation, Dr. Condaras determined that Mr. Rice had reached maximum medical improvement
for his compensable lumbosacral sprain/strain. Using the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, (4th Edition, 1993), he assessed 5%
impairment under Table 75 of the American Medical Association’s Guides and 7% impairment
for range of motion loss. This was combined for a total of 12% impairment. Pursuant to West
Virginia Code of State Rules § 85-20-C (2006), that percentage was adjusted to 8% whole person
impairment. Based upon this report, the claims administrator granted Mr. Rice an 8% permanent
partial disability award.

        Victor Poletajev, D.C., evaluated Mr. Rice on October 29, 2009. In that independent
medical evaluation, Mr. Rice was again determined to be at maximum medical improvement. Dr.
Poletajev diagnosed lumbar sprain/strain with radiculopathy and residuals. He found that straight
leg raise was seventy degrees, lumbar flexion was forty-seven degrees, and lumbar extension
was thirty-eight degrees. Using the American Medical Association’s Guides, Dr. Poletajev
concluded that Mr. Rice had sustained 5% impairment under Table 75 and 11% impairment for
range of motion loss. This was combined for a total of 15% impairment and adjusted to 13%
impairment under West Virginia Code of State Rules § 85-20-C. Dr. Poletajev noted in his report
that Dr. Condaras’s evaluation occurred three months after the compensable injury. He opined
that the general consensus in the American Medical Association’s Guides is that an evaluation
for permanent impairment should not be performed until at least six months after an injury.

       Over five years after the compensable injury, on April 29, 2010, Paul Bachwitt, M.D.,
performed an independent medical evaluation. He determined that Mr. Rice suffered from
lumbar sprain/strain. Using the American Medical Association’s Guides, he assessed 5% whole
person impairment. Since Mr. Rice had already received a permanent partial disability award of
8%, he opined that no additional award was necessary in this claim.

        A final independent medical evaluation was performed on December 15, 2011, by
Prasadarao Mukkamala, M.D., In that evaluation, Dr. Mukkamala assessed 8% impairment for
loss of range of motion and 5% impairment under Table 75 of the American Medical
Association’s Guides. This was combined for a total of 13% impairment. Pursuant to West
Virginia Code of State Rules § 85-20-C, this was adjusted to 8% whole person impairment.
Since Mr. Rice had already received an award of 8% permanent partial disability, Dr.
Mukkamala recommended that no additional impairment be granted. He noted that Dr.
Poletajev’s recommendation of 13% impairment was incorrectly calculated, because there was
no evidence of radiculopathy found.

       The claims administrator granted Mr. Rice no additional permanent partial disability
award in its August 12, 2010, decision. The Office of Judges affirmed that decision in its March
21, 2012, Order. It determined that the evidentiary record indicated that Mr. Rice was fully
compensated by his previous 8% permanent partial disability award. The Office of Judges found
that Dr. Poletajev’s findings could not be reproduced or even approached by any other
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physicians of record. Additionally, his range of motion studies were determined to be invalid.
Under the American Medical Association Guides, a lumbar range of motion test is invalid if the
tightest straight leg rise exceeds flexion and extension by more than 15%. The Office of Judges
concluded that this occurred in Dr. Poletajev’s evaluation.

         The other reports of record were found to be valid. Dr. Bachwitt and Dr. Mukkamala
found essentially no change from Dr. Condaras’s 2004 report. The Office of Judges determined
that, assuming Dr. Poletajev’s findings were accurate, they did not indicate a permanent
condition. Lastly, the Office of Judges found that Mr. Rice was diagnosed with a lumbar strain
over seven years earlier, and it was highly doubtful that he would develop neurological problems
at this late date.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 21, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. Out of the four physicians of record, Dr.
Poletajev was the only one to determine that Mr. Rice was entitled to a 13% permanent partial
disability award. That determination was based in part upon a finding of radiculopathy. Dr.
Condaras evaluated Mr. Rice before Dr. Poletajev and Drs. Bachwitt and Mukkamala evaluated
him after. No evidence of radiculopathy was found by any of the three physicians. A
preponderance of the evidence indicates Mr. Rice has been fully compensated by his previous
8% permanent partial disability award. The decision of the Board of Review is supported by the
evidentiary 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.

                                                                                        Affirmed.

ISSUED: March 12, 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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