                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
WILLIAM K. WITHERS II,                                                          October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0067 (BOR Appeal No. 2046046)
                    (Claim No. 2005046717)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PIER 1 IMPORTS U.S., INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner William K. Withers II, by Patrick Kevin Maroney, 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-Ernest, its attorney, filed a timely
response.

         This appeal arises from the Board of Review’s Final Order dated December 19, 2011, in
which the Board affirmed a May 16, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 29, 2010,
decision granting an additional 8% permanent partial disability award for the lumbar spine. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.


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        Mr. Withers alleges that a light stand fell and struck him on the right side of his head,
neck, mid and low back while he was working for Pier 1 Imports. He suffered contusions to his
face, scalp, neck and abdominal wall; a neck sprain; a thoracic sprain; and low back pain. Mr.
Withers was granted a 6% permanent partial disability award for the cervical spine and a 0%
permanent partial disability award for the thoracic spine. On December 15, 2009, Dr.
Mukkamala concluded Mr. Withers had reached maximum medical improvement for all
conditions regarding the compensable injury, and had an 8% whole person impairment for the
lumbar spine from the compensable injury. Dr. Mukkamala did not address the cervical spine
impairment. On July 15, 2010, Dr. Guberman concluded Mr. Withers had reached maximum
medical improvement, and had an 8% impairment for the cervical spine and an 8% impairment
for the lumbar spine.

        The Office of Judges affirmed the claims administrator’s decision, and held that the
preponderance of the evidence establishes that Mr. Withers has an 8% permanent partial
disability for his lumbar spine. On appeal, Mr. Withers disagrees and asserts that the Office of
Judges erred in limiting the additional 8% permanent partial disability award granted by the
claims administrator to the lumbar area because the claims administrator did not limit the award
to an area, and that he is entitled to an additional 8% permanent partial disability award for the
cervical spine based on Dr. Guberman’s findings.

        The Board of Review affirmed the Office of Judges’ Order. The Board of Review
correctly granted an 8% permanent partial disability award for the lumbar spine. The Office of
Judges determined that Dr. Mukkamala’s and Dr. Guberman’s reports were probative. Dr.
Guberman and Dr. Mukkamala both concluded that Mr. Withers’s lumbar condition had reached
maximum medical improvement, and that he is entitled to an additional 8% permanent partial
disability award for his lumbar spine. However, the Board of Review and the Office of Judges
erred in not considering Mr. Withers’s cervical spine condition for an additional permanent
partial disability award. Dr. Guberman evaluated Mr. Withers, and concluded that he was
entitled to an additional 8% permanent partial disability award for his cervical spine. Therefore,
the Board of Review’s holding is affirmed in part as to the 8% permanent partial disability award
for the lumbar spine, and reversed and remanded in part as to the cervical spine not being
considered for an additional permanent partial disability award. This case is remanded to the
Board of Review with instructions to reconsider and determine the amount of impairment for the
cervical spine.

                                          Affirmed in Part, and Reversed and Remanded in Part.


ISSUED: October 4, 2013

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

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Justice Menis E. Ketchum

DISSENTING:
Justice Allen H. Loughry II





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