                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
NINA MEDDINGS,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0741 (BOR Appeal No. 2047933)
                   (Claim No. 2010098310)

PARK AVENUE RESTAURANT, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Nina Meddings, by Wendle Cook, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Park Avenue Restaurant, Inc., by
Robert J. Busse, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 28, 2013, in which
the Board affirmed a November 13, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges dismissed as moot the claims administrator’s June 2,
2011, decision which granted no permanent partial disability award and closed the claim for
permanent partial disability benefits. In its Order, the Office of Judges also affirmed the claims
administrator’s September 15, 2011, decision which granted Ms. Meddings a 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.

        Ms. Meddings, a waitress, was injured in the course of her employment on July 3, 2009,
when she slipped and fell while pouring water into a sink. Her claim was held compensable for
sprain/strain of the foot, sprain/strain of the knee/leg, and contusion of the knee. A subsequent
MRI revealed a lateral meniscus tear of the posterior horn of the right knee and the claims
administrator authorized surgery which was performed on August 12, 2010. An April 18, 2011,
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treatment note by Ms. Meddings’s treating physician, Robert Atkins, M.D., indicated that her
symptoms had improved since the surgery. An examination of the right knee was normal as was
range of motion.

        Three independent medical evaluations were performed in order to determine the amount
of permanent impairment Ms. Meddings sustained as a result of her compensable injury. The
first evaluation was conducted by Prasadarao Mukkamala, M.D., on May 10, 2011. He indicated
that Ms. Meddings complained of a popping sensation in her right knee. An examination of the
right knee was normal as was range of motion. He diagnosed sprain/contusion of the right knee
and opined that the surgery was not work-related. He found her to be at maximum medical
improvement and assessed 0% impairment. In an addendum to his report, Dr. Mukkamala stated
that he was informed that the right knee surgery was approved by the claims administrator. He
therefore recalculated his impairment rating and assessed 1% whole person impairment.

        The second independent medical evaluation was performed by Bruce Guberman, M.D.,
on December 20, 2011. Dr. Guberman stated that Ms. Meddings reported that surgery initially
improved her symptoms but that they have gradually worsened since. She reported constant pain
in her right knee. She also reported stiffness, swelling, weakness, and popping. He diagnosed
chronic post-traumatic strain of the knee, status post right knee surgery, and resolved history of
sprain and contusion of the right foot and ankle. He found she had reached maximum medical
improvement and assessed 4% whole person impairment. He opined that Ms. Meddings’s
condition had worsened since Dr. Mukkamala’s evaluation.

        The third independent medical evaluation was performed by Michael Condaras, D.C., on
July 18, 2012. Dr. Condaras found no remarkable findings in the right knee and range of motion
was essentially within normal limits. He opined that Ms. Meddings had reached maximum
medical improvement and assessed 1% impairment. He disagreed with Dr. Guberman’s
assessment of 4% whole person impairment. Dr. Condaras noted that both he and Dr.
Mukkamala found normal range of motion in the right knee. He also noted that Ms. Meddings’s
treating physician also found normal range of motion.

        On June 2, 2011, the claims administrator granted Ms. Meddings no permanent partial
disability award and closed the claim for permanent partial disability benefits. In a September 15,
2011, decision the claims administrator granted Ms. Meddings a 1% permanent partial disability
award. The Office of Judges, in its November 13, 2011, Order, dismissed Ms. Meddings’s
protest to the claims administrator’s June 2, 2011, decision as moot and affirmed the claims
administrator’s September 15, 2011, decision.

        The Office of Judges found that Dr. Mukkamala’s initial independent medical evaluation
failed to consider Ms. Meddings’s right knee surgery as related to the compensable injury;
however, in an addendum report, he considered the surgery and assessed 1% whole person
impairment. Dr. Condaras examined Ms. Meddings and found normal range of motion in the
right knee as did Dr. Mukkamala. Dr. Guberman was the only physician of record to find
abnormal range of motion measurements in the right knee. The Office of Judges determined that
Dr. Guberman’s findings were unsubstantiated by Dr. Mukkamala’s independent medical
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evaluation performed prior to Dr. Guberman’s and by Dr. Condaras’s independent medical
evaluation performed after Dr. Guberman’s. The Office of Judges noted that Ms. Meddings’s
treating physician also found normal range of motion in the right knee in his April 18, 2011,
report. The Office of Judges ultimately determined that Dr. Guberman’s findings were either
inaccurate or not permanent in nature. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order in its June 28, 2013, decision.

        On appeal, Ms. Meddings argues that Dr. Guberman’s independent medical evaluation is
the only reliable permanent partial disability report of record. Park Avenue Restaurant, Inc.,
asserts that Dr. Mukkamala’s report was reliable and correct. Upon review, this Court agrees
with the reasoning of the Office of Judges and the conclusions of the Board of Review. The
evidentiary record shows that Ms. Meddings is entitled to no more than a 1% permanent partial
disability award for her compensable injury.

        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 20, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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