                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 8, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CHARLES STEPHENSON JR.,                                                       OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1152 (BOR Appeal No. 2047025)
                   (Claim No. 2010134957)

PATRIOT COAL CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Charles Stephenson Jr., by Linda Garrett, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Patriot Coal Corporation, by Henry
C. Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 30, 2012, in
which the Board affirmed a February 16, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s January 21, 2011,
decision granting Mr. Stephenson a 4% permanent partial disability award. The Office of Judges
granted him a 5% 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. Stephenson worked as an electrician for Patriot Coal Corporation. On May 24, 2010,
Mr. Stephenson injured his right foot and ankle when a shuttle car tipped over on him. Mr.
Stephenson was diagnosed with a right ankle fracture, and the claims administrator held his
injury compensable for that condition. Mr. Stephenson then came under the care of Jason A.
Castle, M.D., who found that he was making progress. Dr. Castle also found that Mr. Stephenson
demonstrated the ability to dorsiflex to neutral and had good plantar flexion strength. Prasadarao
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B. Mukkamala, M.D., then performed an independent medical evaluation on Mr. Stephenson and
found that he had 4% whole person impairment based on the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Dr. Mukkamala based this
recommendation on finding 3% range of motion impairment for the ankle and 1% impairment
for the hindfoot. On January 21, 2011, the claims administrator granted Mr. Stephenson a 4%
permanent partial disability award based on Dr. Mukkamala’s recommendation. Bruce A.
Guberman, M.D., then performed an independent medical evaluation of Mr. Stephenson and
found that he had 8% whole person impairment because he had 6% range of motion impairment
for his ankle and 2% impairment for his hindfoot. Saghir Mir, M.D., also performed an
independent medical evaluation of Mr. Stephenson and found that he had 5% whole person
impairment. Dr. Mir found that Mr. Stephenson had 3% range of motion impairment for his
ankle and 2% impairment for his hindfoot. On February 16, 2012, the Office of Judges reversed
the claims administrator’s decision and granted Mr. Stephenson a 5% permanent partial
disability award. The Board of Review affirmed the Order of the Office of Judges on August 30,
2012, leading Mr. Stephenson to appeal.

        The Office of Judges concluded that a preponderance of the credible medical evidence
established that Mr. Stephenson had 5% whole person impairment pursuant to the American
Medical Association’s Guides. In making this determination, the Office of Judges relied on the
impairment recommendation of Dr. Mir. The Office of Judges determined that Dr. Mir’s 3%
rating for range of motion impairment of the ankle was supported by the findings of Dr.
Mukkamala. The Office of Judges also found that Dr. Mir’s 2% rating for range of motion
impairment of the hindfoot was supported by Dr. Guberman’s report. The Office of Judges
considered the higher impairment recommendation made by Dr. Guberman but found that it was
not corroborated by the remainder of the medical evidence because the treatment notes of Dr.
Castle showed that Mr. Stephenson had good plantar flexion strength and better range of motion
for the ankle than reflected in Dr. Guberman’s report. 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. Stephenson has not demonstrated that he is entitled to a greater than 5% permanent
partial disability award for his compensable right ankle injury. The Office of Judges made its
impairment determination based on the recommendation of Dr. Mir, and there is nothing in the
record showing that Dr. Mir’s report was not reliable. Dr. Mir based his recommendation on a
physical evaluation of the range of motion in Mr. Stephenson’s ankle and hindfoot and applied
the American Medical Association’s Guides to his findings. Dr. Mir’s findings were supported
by the record as a whole, and the Office of Judges was within its discretion in relying on his
recommendation. The Office of Judges also provided adequate justification for not relying on Dr.
Guberman’s whole person impairment recommendation.

        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: April 8, 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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