                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 2, 2017
RONALD E. WILLIAMS,                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-1073 (BOR Appeal No. 2051302)
                    (Claim No. 2013019732)

PERFORMANCE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Ronald E. Williams, by Rodney A. Skeens and Reginald D. Henry, his
attorneys, appeal the decision of the West Virginia Workers’ Compensation Board of Review.
Performance Coal Company, by Sean Harter, its attorney, filed a timely response.

        The issue presented in the instant appeal is the amount of permanent partial disability
impairment for bilateral carpal tunnel syndrome. On February 9, 2015, the claims administrator
granted a 0% permanent partial disability award. The Workers’ Compensation Office of Judges
reversed the claims administrator’s Order in a decision dated April 19, 2016, and granted Mr.
Williams a 12% permanent partial disability award. This appeal arises from the Board of
Review’s Final Order dated October 11, 2016, in which the Board reversed the decision of the
Office of Judges, and granted Mr. Williams a 2% permanent partial disability award for bilateral
carpal tunnel syndrome. 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.

        On December 11, 2012, Mr. Williams filed a report of injury alleging that he had
sustained bilateral carpal tunnel syndrome as a result of his work-related activities as an
electrician and miner. Syed Zahir, M.D., signed the physician’s portion of the application and
indicated that Mr. Williams’s diagnosis of bilateral carpal tunnel syndrome was work-related.
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The claims administrator denied the application by Order dated April 9, 2013, and found the
condition not to be causally related to his employment. Mr. Williams timely protested the claims
administrator’s Order.

        Mr. Williams introduced into the record an independent medical examination by Bruce
Guberman, M.D., dated June 5, 2013. Dr. Guberman concluded that Mr. Williams suffered from
bilateral carpal tunnel syndrome as a result of using his hands repeatedly at work. Although Dr.
Guberman conceded that Mr. Williams had a predisposing factor of obesity, Dr. Guberman was
of the opinion that Mr. Williams would not have developed carpal tunnel syndrome but for his
work exposure. By final decision dated November 25, 2013, the Office of Judges reversed the
rejection of the claim by the claims administrator and held the claim compensable for the
diagnosis of bilateral carpal tunnel syndrome.

        Mr. Williams underwent carpal tunnel release surgery performed by Philip J. Branson,
M.D., at Princeton Community Hospital. Following the successful surgery, Marsha Bailey,
M.D., evaluated Mr. Williams and completed an independent medical evaluation on January 26,
2015. In her report, Dr. Bailey concluded that Mr. Williams had reached his maximum degree of
medical improvement with no impairment attributable to occupationally related bilateral carpal
tunnel syndrome. She found that Mr. Williams had a full range of motion in both wrists. Because
of his heavily callused hands and grease stains, Dr. Bailey believed that Mr. Williams was still
performing manual hand activities on a regular basis. She rated Mr. Williams at 4% upper
extremity whole person impairment. However, based upon the history that his symptoms have
not only persisted but worsened after his occupational exposure at Performance Coal Company,
she apportioned the entire 4% impairment to non-occupational risk factors. Dr. Bailey’s final
recommendation was for a 0% whole person impairment rating for bilateral carpal tunnel
syndrome. Based upon Dr. Bailey’s recommendation, the claims administrator granted a 0%
award by Order dated February 9, 2015. Mr. Williams filed a timely protest.

       In another independent medical evaluaton report dated April 7, 2015, Dr. Guberman
reported that surgery had improved the claimant’s symptoms. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, (4th Ed. 1993) Dr. Guberman
concluded Mr. Williams had 13% whole person impairment for bilateral carpal tunnel syndrome.
Dr. Guberman attributed 7% whole person impairment to the claimant’s right wrist and a total of
6% impairment to the left wrist.

       Robert Walker, M.D., evaluated Mr. Williams and issued an independent medical
evaluation report dated July 30, 2015. Dr. Walker found 7% whole person impairment for the
right median nerve component of the injury and 7% for the left upper extremity. Dr. Walker
combined the impairments for his right and left upper extremities and concluded that Mr.
Williams has 14% whole person impairment due to his bilateral carpal tunnel syndrome.

       The employer introduced an independent medical evaluation by Prasadarao Mukkamala,
M.D., dated September 25, 2015. Dr. Mukkamala apportioned 1% impairment per extremity for
non-compensable factors, such as obesity. Dr. Mukkamala combined the 1% impairment per

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extremity and concluded that 2% whole person impairment resulted from his carpal tunnel
syndrome.

        By decision dated April 19, 2016, the Office of Judges reversed the claims
administrator’s order dated February 9, 2015, which had granted Mr. Williams a 0% permanent
partial disability award. The Office of Judges granted Mr. Williams a 12% award for bilateral
carpal tunnel syndrome. In its reasoning, the Office of Judges dismissed the evaluations of Drs.
Bailey and Mukkamala based upon an insufficient evaluation of his activities of daily living and
the interference thereof as contemplated by Table 11, Page 48 of the American Medical
Association, Guides.

        The Office of Judges deemed the reports of Drs. Walker and Guberman to be the most
credible medical evidence of record. However, because Drs. Guberman and Walker did not
reduce their recommendations of whole person impairment, the ALJ reasoned that it had two
options. It could affirm the claims administrator based upon either a finding that Mr. Williams
had failed to introduce into the record credible medical evidence in support of his protest or find
reports which the Office of Judges has already noted to be insufficiently documented to back
their conclusions. It could also simply reduce the recommendation of impairment suggested by
the evidence of record submitted by Mr. Williams, which is otherwise found to be credible in its
methodology and adherence to the protocols of the American Medical Association’s, Guides to
conform with West Virginia Code of State Rules § 85-20-65.5 (2006). The Office of Judges
opted to make a slight adjustment to the impairment ratings submitted by Drs. Walker and
Guberman. After the ALJ adjusted the impairment recommendation to conform with West
Virginia Code of State Rules § 85-20-65.5, Mr. Williams was awarded 6% whole person
impairment per upper extremity for a total of 12%.

        The Board of Review reversed the decision of the Office of Judges by Final Order dated
October 11, 2016, and granted Mr. Williams a 2% permanent partial disability award based upon
Dr. Mukkamala’s 2% whole-person impairment rating. The Board of Review ruled that the
decision of the Office of Judges was clearly wrong in view of the reliable, probative and
substantial evidence of the record. The Board of Review took issue with the granting of a 12%
permanent partial disability award, which was not recommended by any of the evaluators.
Instead of relying upon an impairment rating from a physician, the ALJ adjusted the ratings from
Drs. Walker and Guberman to conform with West Virginia Code of State Rules § 85-20-65.5
(2006). The Board of Review relied upon this Court’s language in Repass v. Workers’
Compensation Division, 212 W. Va. 86, 569 S.E.2d 162 (2002), to conclude that permanent
partial disability awards are solely to be issued on the basis of impairment ratings from doctors.
The Board of Review discussed that subsequent memorandum decisions have elaborated on this
issue, including Magnatech Industrial Services v. York, No. 14-0386 (W. Va. Supreme Court,
Jan. 15, 2015) (memorandum decision), in which the Court reversed an Order that was based
upon the same type of reduction to conform to West Virginia Code of State Rules § 85-20-65.5.
The Board ultimately found the report from Dr. Mukkamala to be the most relevant and credible
report, as it conformed with the American Medical Association’s, Guides and West Virginia
Code of State Rules § 85-20-65.5. Mr. Williams was granted a 2% permanent partial disability

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award for bilateral carpal tunnel syndrome by the Board of Review.            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: August 2, 2017

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




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