                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 27, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
EARL TONEY,                                                                    OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0616 (BOR Appeal No. 2049110)
                   (Claim No. 2012027690)

AUSTIN POWDER COMPANY,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Earl Toney, by Stephen P. New, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Austin Powder Company, by T. Jonathan
Cook, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 27, 2014, in which
the Board affirmed a December 12, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s October 4, 2012, decision
granting Mr. Toney a 5% permanent partial disability award and instead granted him an 8%
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. Toney, a truck driver, was injured in the course of his employment on February 21,
2012, when he fell while pulling on a heavy door. Treatment notes from Plateau Medical Center
from the date of injury indicate Mr. Toney was diagnosed with an acute lumbar myofascial
strain. He was treated by Ryan Newell, D.O., for his injury. It was noted in February of 2012,
that Mr. Toney had a history of chronic back pain. Dr. Newell diagnosed lumbar strain,
lumbosacral spondylosis, lumbosacral strain, thoracic strain, cervical strain, and back pain in the
thoracic region and recommended physical therapy and medication.
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        Paul Bachwitt, M.D., conducted an independent medical evaluation on August 15, 2012,
in order to determine the amount of permanent impairment Mr. Toney sustained as a result of his
compensable injury. Dr. Bachwitt noted that Mr. Toney had a previous lower back injury in 2008
for which he was off of work for four to six months. Dr. Bachwitt also noted that he had
spondylolisthesis at L5-S1 since he was six years old, which caused facet hypertrophy, anterior
subluxation, and bilateral neural foraminal stenosis. Dr. Bachwitt determined that there was no
mention of an injury to the cervical or thoracic spine in the medical records, and a thoracic CT
showed mild chronic-appearing compression deformities, which were likely pre-existing minor
degenerative changes. They were found to be unrelated to the compensable injury. Mr. Toney
was found to be at maximum medical improvement for his lumbar spine injury. In an addendum
report, Dr. Bachwitt stated that he only rated the lumbar spine because it was the only
compensable condition in the claim. He placed Mr. Toney in Lumbar Category II of Table 75 of
the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993) for an impairment rating of 5%. He apportioned half of the impairment to pre-existing
degenerative changes and prior injuries. He found that Mr. Toney fell into Lumbar Category II of
West Virginia Code of State Rules § 85-20-C (2006), which allows for an impairment rating
between 5% and 8%. Dr. Bachwitt therefore adjusted the rating to 5% whole person impairment.
Based upon his report, the claims administrator granted Mr. Toney a 5% permanent partial
disability award on October 4, 2012.

        Bruce Guberman, M.D., conducted an independent medical evaluation on March 8, 2013.
At that time, Mr. Toney reported pain in his cervical, thoracic, and lumbar spine. Dr. Guberman
diagnosed post-traumatic acute and chronic lumbosacral, cervical, and thoracic strains. He found
8% impairment for range of motion abnormalities but apportioned 4% to pre-existing
degenerative changes. Mr. Toney was placed in Category II of Table 75 of the American
Medical Association’s Guides and found to have 5% impairment. The impairments were
combined for a whole person lumbar impairment of 9% which was reduced to 8% after Mr.
Toney was placed in Lumbar Category II of West Virginia Code of State Rules § 85-20-C. Dr.
Guberman also provided a rating for the cervical spine of 8% impairment and a rating for the
thoracic spine of 5% impairment. His total combined recommendation was 19% impairment.

        A final independent medical evaluation was performed on September 6, 2013, by
Prasadarao Mukkamala, M.D. At that time, Mr. Toney stated that he had pain in his lower back
and neck. Dr. Mukkamala opined that Mr. Toney suffered a lumbar sprain as a result of the
compensable injury. He found that the thoracic spine complaints arose ten or eleven days after
the injury, and the cervical pain complaints arose about twenty days after the injury. He opined
that they were unrelated to the compensable injury. For the lumbar spine, Dr. Mukkamala found
7% impairment for range of motion deficits. He stated that Mr. Toney did not qualify for a rating
under Table 75 of the American Medical Association’s Guides. He placed Mr. Toney in Lumbar
Category II of West Virginia Code of State Rules § 85-20-C and stated that the 7% impairment
did not need to be adjusted. He opined that Dr. Guberman incorrectly calculated impairment for
the cervical and thoracic spine, as the conditions were not compensable components of the claim.


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        The Office of Judges reversed the claims administrator’s decision in its December 12,
2013, Order and granted Mr. Toney an 8% permanent partial disability award. It determined that
Dr. Guberman was the only evaluator of record to recommend impairment for the cervical and
thoracic spines. Drs. Bachwitt and Mukkamala both concluded that Mr. Toney did not injure his
cervical or thoracic spine as a result of the compensable injury. The Office of Judges determined
that issues of compensability and/or secondary conditions were not before it, and there was no
evidence of record to indicate that either the cervical or thoracic spines were compensable
components of the claim. It therefore concluded that Mr. Toney was not entitled to an
impairment rating for either condition. The Office of Judges noted that the mere fact that Dr.
Guberman assessed impairment for Mr. Toney’s cervical and thoracic spines does not invalidate
his assessment for lumbar impairment.

        In regard to impairment under Table 75 of the American Medical Association’s Guides,
the Office of Judges found that Drs. Guberman and Bachwitt both assessed 5% impairment,
while Dr. Mukkamala found no impairment. The Office of Judges concluded that the weight of
the evidence indicates Mr. Toney sustained a lumbar strain with pain and loss of range of
motion, and it was therefore found that he was entitled to 5% impairment under Table 75 of the
American Medical Association’s Guides. For range of motion impairment, the Office of Judges
observed that Dr. Guberman assessed 8% impairment while Dr. Mukkamala assessed 7%
impairment. Dr. Bachwitt, however, found no impairment for range of motion because he was
unable to obtain valid lumbar range of motion measurements. The Office of Judges determined
that Drs. Guberman and Mukkamala’s range of motion findings clearly show that Mr. Toney has
impairment for range of motion loss. It was found that Dr. Guberman apportioned 4%
impairment to pre-existing conditions while Dr. Mukkamala made no apportionment for pre­
existing conditions. Dr. Bachwitt also apportioned his overall impairment rating for pre-existing
conditions. Because Dr. Guberman properly apportioned for pre-existing conditions, his
impairment recommendation was determined to be more reliable than that of Dr. Mukkamala.
The Office of Judges therefore concluded that Dr. Guberman’s report provided the most accurate
and reliable assessment of Mr. Toney’s lumbar spine condition. It therefore granted an additional
3% permanent partial disability for a total award of 8%. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May 27,
2014.

        On appeal, Mr. Toney argues that Dr. Guberman’s impairment recommendation properly
accounted for his work-related injury. He states that Dr. Guberman’s assessment included ratings
for the cervical and thoracic spines, and the ratings should be included in his permanent partial
disability award. He further argues that even though the conditions were not held to be
compensable, he reported pain in his thoracic and cervical spine shortly after the injury and
received some treatment for them. Austin Powder Company asserts that Dr. Guberman’s total
impairment rating contained ratings for non-compensable injuries to the thoracic and cervical
spine. It argues that the most reliable evidence shows Mr. Toney sustained no more than 5%
impairment due to the compensable injury as evidenced by Dr. Bachwitt’s report. It further
asserts that Dr. Bachwitt properly apportioned for Mr. Toney’s prior back injuries.


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        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidentiary record indicates that the only compensable component of
the claim is an injury to the lumbar spine. Since the cervical and thoracic spines are not
compensable components of the claim, Mr. Toney is not entitled to awards for them. The
evidentiary record shows that Mr. Toney is entitled to an 8% permanent partial disability award
for his compensable lumbar spine 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: March 27, 2015

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




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