                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 7, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MOLLY S. CLICK,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0084	 (BOR Appeal No. 2046259)
                   (Claim No. 2007218893)

MCDOWELL COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Molly S. Click, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The McDowell County Board of
Education, by T. Jonathan Cook, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 22, 2011, in
which the Board affirmed an August 11, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 27,
2010, decision, which denied Ms. Click’s request to reopen her claim for additional permanent
partial disability benefits. 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.

       Ms. Click worked as a cook for the McDowell County Board of Education. On October
16, 2006, Ms. Click injured her right ankle when she tripped over a student’s foot and fell. Her
claim was held compensable for a non-traumatic rupture of the tendons. On September 6, 2007,
Dr. Kropac found that Ms. Click had reached the maximum degree of medical improvement and
recommended a 3% whole person impairment based on residual effects of her ruptured tendon.
Dr. Kropac based his impairment rating on the range of motion model of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Based on Dr.
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Kropac’s evaluation, the claims administrator closed Ms. Click’s claim on February 11, 2008,
and granted her a 3% permanent partial disability award. On August 5, 2010, Ms. Click
submitted an application to have her claim reopened for consideration of additional permanent
partial disability benefits. Her application included notes from Dr. Horwitz which indicated that
Ms. Click had 21% impairment. Dr. Horwitz’s notes also indicated that he believed that Dr.
Kropac’s assessment had not tested ankle valgus or varus. The claims administrator rejected Ms.
Click’s application to have her claim reopened for additional permanent partial disability benefits
on September 27, 2010. Ms. Click’s claim was then evaluated by Dr. Mukkamala who found that
there was no evidence of a progression or aggravation of her injury. The Office of Judges
affirmed the claims administrator’s decision on August 11, 2011. The Board of Review then
affirmed the Order of the Office of Judges on December 22, 2011, leading Ms. Click to appeal.

        The Office of Judges concluded that Ms. Click did not establish a credible, preponderant
evidentiary foundation of a reasonable inference that there had been a progression or aggravation
of her condition above the 3% permanent partial disability award previously granted. Although
the Office of Judges considered the notes of Dr. Horwitz, it found that they were ambiguous. The
Office of Judges pointed out that it was impossible to discern from Dr. Horwitz’s notes when he
performed his assessment or if he used the proper assessment methods. The Office of Judges also
found that Dr. Kropac had considered Ms. Click’s ankle valgus and varus but found no ligament
laxity. The Office of Judges determined that there was no credible evidence in the record that
would tend to justify an inference that there had been a progression or aggravation of Ms. Click’s
compensable injury. 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. Ms. Click has not presented any evidence that would tend to justify an inference that
there had been a progression or aggravation of her compensable injury. Harper v. State
Workmen’s Comp. Comm’r, 160 W. Va. 364, 364, 234 S.E.2d 779, 780 (1977). The notations of
Dr. Horwitz are not sufficiently clear to justify reopening the claim and do not tend to show that
Ms. Click is entitled to additional permanent partial disability benefits.

        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: November 7, 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
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