                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 15, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
FRED L. LOYD,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0188	 (BOR Appeal No. 2048759)
                   (Claim No. 2011037422)

AKER CONSTRUCTION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Fred L. Loyd, by Stephen New, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Aker Construction, by Gary Nickerson and
James Heslep, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 27, 2014, in
which the Board affirmed an August 22, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s May 17, 2012,
decision granting Mr. Loyd a 13% permanent partial disability award, and the Office of Judges
granted Mr. Loyd a 14% 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. Loyd injured his lower back and right shoulder on May 13, 2011, while installing
cable during the course of his employment as an electrician, and the claim was held compensable
for a lumbar sprain and unspecified sprain of the arm/shoulder. On May 9, 2012, Joseph Grady
II, M.D., performed an independent medical evaluation. He noted that Mr. Loyd underwent an
arthroscopic labral debridement with biceps tenodesis on March 15, 2012. He further noted that
Mr. Loyd continues to experience discomfort in the right shoulder due to an apparent rupture of
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the biceps tendon following surgery. Dr. Grady then opined that Mr. Loyd sustained 5% whole
person impairment as a result of range of motion abnormalities in the right shoulder. He further
opined that Mr. Loyd sustained 8% whole person impairment as a result of range of motion
abnormalities in the lumbar spine. Dr. Grady then opined that Mr. Loyd sustained 13% whole
person impairment as a result of his compensable injuries. On May 17, 2012, the claims
administrator granted Mr. Loyd a 13% permanent partial disability award based upon Dr.
Grady’s evaluation.

       Mr. Loyd underwent a second right shoulder arthroscopy on September 18, 2012. Two
months after the second arthroscopy, Robert Walker, M.D., performed an independent medical
evaluation. He opined that Mr. Loyd sustained 9% whole person impairment as a result of range
of motion abnormalities in the right shoulder. Dr. Walker further opined that Mr. Loyd sustained
13% whole person impairment as a result of the presence of L5 radiculopathy and range of
motion abnormalities in the lumbar spine arising from the compensable injury. Dr. Walker
determined that Mr. Loyd sustained 21% whole person impairment as a result of his
compensable injuries.

       On February 11, 2013, Dr. Grady performed a second independent medical evaluation
and found that Mr. Loyd had not reached maximum medical improvement regarding the right
shoulder following the second right shoulder arthroscopy. He further found that Mr. Loyd is not
experiencing any radicular symptoms in the lumbar spine and opined that he sustained 5% whole
person impairment as a result of range of motion abnormalities in the lumbar spine.

        Finally, Prasadarao Mukkamala, M.D., performed an independent medical evaluation on
May 21, 2013. He opined that Mr. Loyd sustained 9% whole person impairment as a result of
range of motion abnormalities in the right shoulder. Dr. Mukkamala then found that there is no
evidence of lumbar radiculopathy on examination and opined that Mr. Loyd sustained 6% whole
person impairment as a result of range of motion abnormalities in the lumbar spine arising from
the compensable injury. He concluded that Mr. Loyd sustained 14% whole person impairment as
a result of his compensable injuries.

       In its Order reversing the May 17, 2012, claims administrator’s decision, the Office of
Judges held that the preponderance of the evidence demonstrates that Mr. Loyd sustained 9%
whole person impairment as a result of the compensable right shoulder injury and 6% whole
person impairment as a result of the compensable lumbar spine injury, for a combined total of
14% whole person impairment arising from the May 13, 2011, compensable injury. Mr. Loyd
disputes this finding and asserts that he is entitled to an additional permanent partial disability
award for the compensable lumbar spine injury, per the opinion of Dr. Walker.

       The Office of Judges found that it is evident that Mr. Loyd was left with increased
permanent impairment in the right shoulder following the second right shoulder arthroscopy. The
Office of Judges then noted that although Dr. Grady did not provide an impairment rating for the
right shoulder following the second arthroscopy, both Dr. Walker and Dr. Mukkamala
determined that Mr. Loyd sustained 9% whole person impairment as a result of the right shoulder

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injury. The Office of Judges then concluded that the evidence of record demonstrates that Mr.
Loyd sustained 9% whole person impairment as a result of the right shoulder injury.

        Regarding the lumbar spine, the Office of Judges noted that only Dr. Walker found
evidence of lumbar radiculopathy and concluded that the preponderance of the evidence
indicates that Mr. Loyd does not suffer from lumbar radiculopathy. Further, the Office of Judges
found that only Dr. Walker placed Mr. Loyd in Lumbar Category III of West Virginia Code of
State Rules § 85-20-Table C (2006) while Dr. Mukkamala and Dr. Grady, who evaluated Mr.
Loyd on two separate occasions, placed him in Lumbar Category II. The Office of Judges then
determined that the most recent lumbar spine findings of Dr. Grady and the findings of Dr.
Mukkamala are relatively consistent, with recommended lumbar spine whole person impairment
of 5% and 6% respectively, and therefore concluded that the preponderance of the evidence
demonstrates that Mr. Loyd sustained 6% whole person impairment as a result of his
compensable lumbar spine injury. The Office of Judges then determined that Mr. Loyd is entitled
to a total permanent partial disability award of 14%, as recommended by Dr. Mukkamala. The
Board of Review reached the same reasoned conclusions in its decision of January 27, 2014. We
agree with the reasoning and conclusions of 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.

                                                                                        Affirmed.

ISSUED: January 15, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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