                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 10, 2017
TRAVIS D. HICKS,                                                               RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 17-0159 (BOR Appeal No. 2051513)
                   (Claim No. 2012010991)

ALPHA CONTRACTING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Travis D. Hicks, by Reginald Henry his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alpha Contracting, Inc., by Katherine
Arritt and Jeffrey Brannon its attorneys, filed a timely response.

        The issue presented in the instant appeal is Mr. Hicks’s request for a permanent partial
disability award. On July 27, 2015, the claims administrator granted Mr. Hicks a 0% permanent
partial disability award for his compensable left knee sprain. The Office of Judges affirmed the
claims administrator’s decision on August 23, 2016. This appeal arises from the Board of
Review’s Final Order dated January 20, 2017, in which the Board affirmed the Order of the
Office of Judges. 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. Hicks slipped and injured his left knee in the course of his employment with Alpha
Contracting, Inc., on July 5, 2011.1 Mr. Hicks’s claim for workers’ compensation benefits was
held compensable for a left knee sprain on January 4, 2012. He subsequently underwent three

1
 We note that both the Board of Review and Office of Judges incorrectly list the date of injury as
June 5, 2011.
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independent medical evaluations for the purpose of determining the amount of permanent
impairment arising from the compensable injury.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 21,
2015, and authored a report memorializing his findings on May 22, 2015. Dr. Mukkamala found
no evidence of instability, crepitus, or deformity upon examination of the left knee and opined
that Mr. Hicks sustained 0% whole person impairment as a result of the compensable injury. The
claims administrator granted Mr. Hicks a 0% permanent partial disability award on July 27,
2015, based upon Dr. Mukkamala’s independent medical evaluation.

       Bruce Guberman, M.D., performed an independent medical evaluation on January 12,
2016, and authored a report memorializing his findings on the same date. Dr. Guberman opined
that Mr. Hicks sustained 8% whole person impairment as a result of atrophy present in the left
calf.

        Finally, David Soulsby, M.D., performed an independent medical evaluation on July 7,
2016, and authored a report memorializing his findings on the same date. Dr. Soulsby opined that
Mr. Hicks did not exhibit any range of motion abnormalities in the left knee. He also found
evidence of bilateral patellofemoral crepitation, which he opined is unrelated to the compensable
injury. Dr. Soulsby did not find any evidence of atrophy in the left calf, and opined that Mr.
Hicks sustained 0% whole person impairment as a result of the compensable injury.

        In its Order affirming the July 27, 2015, claims administrator’s decision, the Office of
Judges held that Mr. Hicks failed to demonstrate that he sustained any permanent impairment as
a result of the compensable injury. The Board of Review affirmed the reasoning and conclusions
of the Office of Judges in its decision dated January 27, 2017. On appeal, Mr. Hicks asserts, per
the opinion of Dr. Guberman, that he is entitled to an 8% permanent partial disability award.

        The Office of Judges found that only Dr. Guberman, on whose opinion Mr. Hicks relies,
assigned an impairment rating for atrophy of the left calf. The Office of Judges further found that
both Dr. Mukkamala, who evaluated Mr. Hicks before Dr. Guberman, and Dr. Soulsby, who
evaluated Mr. Hicks after Dr. Guberman, not only found no evidence of atrophy but also found
that Mr. Hicks sustained 0% whole person impairment as a result of the compensable injury.
Therefore, the Office of Judges concluded that Dr. Guberman’s opinion is not a credible
indication of the amount of Mr. Hicks’s whole person impairment attributable to the
compensable injury. We agree with the reasoning and conclusions of the Office of Judges, as
affirmed by the Board of Review.

        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: October 10, 2017


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

DISSENTING:
Justice Menis E. Ketchum




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