                            STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS
                                                                                 FILED
                                                                              November 7, 2017
ROBERT WELLS,                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA


vs.)   No. 17-0188 (BOR Appeal No. 2051506)
                   (Claim No. 2015018773)

KROGER LIMITED PARTNERSHIP I,
Employer Below, Respondent


                            MEMORANDUM DECISION
        Mr. Wells appeals the consistent decisions of the Office of Judges and Board of Review.
Mr. Wells, by his attorney, Patrick Maroney, argues that he is entitled to an additional 14%
permanent partial disability award based on the report of Bruce Guberman, M.D. The
respondent, by its attorney, Sean Harter, argues that Dr. Guberman’s report was excessive and
the reports of Prasadarao Mukkamala, M.D., and Syam Stoll, M.D., contain more reasoned
impairment ratings of 3% whole person impairment. Because Dr. Guberman’s report does not
take into consideration Mr. Wells’s past injuries or explain how it impacts his current
impairment, we hold that the Board of Review was not in error for relying on Dr. Mukkamala’s
report, and granting a 3% permanent partial disability award.

        Mr. Wells injured his shoulder, neck, and ankle in an accident at work. The claims
administrator held the claim compensable for left ankle, neck, and shoulder sprains. A cervical
MRI revealed diffuse degenerative changes present throughout the cervical spine with loss of
height in the disc space as well as disc bulges. An MRI of the shoulder revealed mild
tendinopathy of the distal supraspinatus tendon. Mr. Wells was seen by Stanley Tao, M.D., for
his left shoulder. Dr. Tao noted that Mr. Wells underwent a left shoulder acromioplasty and
distal clavicle excision on April 8, 2009. Mr. Wells underwent three independent medical
evaluations to determine his level of impairment related to the compensable injury. All the
evaluators agreed that Mr. Wells was at maximum medical improvement.

       Dr. Stoll placed Mr. Wells in Cervical Category II-B of Table 75 of the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), which
yielded 4% whole person impairment. Dr. Stoll assessed range of motion impairment and found
17% whole person impairment for the cervical spine. He combined the 4% with the 17% to reach
21%. He placed Mr. Wells in Category II of West Virginia Code of State Rules § 85-20-E
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(2006), for 5-8% whole person impairment. The 21% whole person impairment was adjusted to
5% to fit into the category. Because Mr. Wells had significant cervical spondylosis, Dr. Stoll
deemed that none of the 5% was related to the injury. Using the range of motion model for the
shoulder impairment, Dr. Stoll found Mr. Wells has 14% upper extremity impairment of the
injured left shoulder and 9% for the uninjured right shoulder. The difference between them is 5%
impairment of the left upper extremity, which Dr. Stoll opined was related to the compensable
injury. However, Dr. Stoll stated that medical records reveal a previous surgery by Dr. Tao on
April 8, 2009, when Mr. Wells underwent arthroscopy for impingement and joint arthrosis. Dr.
Stoll apportioned half of the range of motion loss to pre-existing degenerative disease, resulting
in 3% whole person impairment.

        Dr. Guberman found that that Mr. Wells fit into Cervical Category II-B of the American
Medical Association’s Guides for 4% whole person impairment. He found that Mr. Wells had
6% whole person impairment due to range of motion abnormalities for a combined total of 10%
whole person impairment. Dr. Guberman placed Mr. Wells in Cervical Category II of West
Virginia Code of State Rules § 85-20-E, and found that Mr. Wells belonged in the upper range of
the category for a total of 8%. Dr. Guberman concluded that Mr. Wells had a total of 5% whole
person impairment due to his left shoulder range of motion abnormalities. Dr. Guberman found
1% whole person impairment based on the range of motion deficits in the left ankle. His total
impairment rating was 14% whole person impairment but since Mr. Wells had already received
3%, he suggested an additional 11% whole person impairment.

        Dr. Mukkamala found 8% whole person impairment using the American Medical
Association’s Guides and West Virginia Code of State Rules § 85-20-E. Dr. Mukkamala
apportioned half to the motor vehicle accident from 2006 and the other half to an injury in a
different claim. Dr. Mukkamala concluded that Mr. Wells did not suffer any cervical spine whole
person impairment related to the injury at issue. For the left shoulder, he found 4% whole person
impairment. Dr. Mukkamala apportioned half the impairment to the motor vehicle accident of
2006 and half to this claim, for 2%. He also found 1% whole person impairment of the left ankle.
The impairments were combined for 3% whole person impairment due to the compensable
injury.

        The claims administrator granted Mr. Wells a 3% permanent partial disability award. The
Office of Judges found that Dr. Mukkamala’s report was the most credible and reliable report of
record because his report fully considered all of Mr. Wells’s pre-existing degenerative changes
and was more recent. The Office of Judges discussed that in relation to the cervical spine rating,
Dr. Mukkamala’s impairment was closest to Dr. Guberman in terms of whole person impairment
attributable to range of motion defects. The Office of Judges found that Dr. Stoll’s impairment
rating was much higher under the range of motion model than any other physician of record. The
Office of Judges did not rely on Dr. Guberman’s report because he did not apportion for either
the 2006 motor vehicle accident or the prior 2010 injury. In relation to the left ankle, both Drs.
Guberman and Mukkamala agreed that 1% permanent partial disability was appropriate. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.


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        Dr. Mukkamala’s report is credible, reliable, and supported by the evidence in the record.
Dr. Mukkamala took into consideration other past injuries that Drs. Guberman and Stoll did not
fully consider. 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. A
memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure because
the arguments are adequately presented and the decisional process would not be significantly
aided by oral argument.



                                                                                         Affirmed.

ISSUED: November 7, 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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