CHARLESTON – The state Supreme Court has affirmed the Workers’ Compensation Board of Review’s finding that an injured worker was only eligible for a certain amount of compensation.

The unanimous memorandum opinion was issued by the court on March 28. It said an awardee was only eligible for the 13 percent whole person impairment dictated by preconceived ranges of impairment regardless of the 18 percent whole person impairment found by a physician using range-of-motion modes.

Dexter L. Gore, a superintendent with the Boone County Parks and Recreation Commission, alleged that he injured his lower back when picking up a cinder block in March 1999. On April 5, 1999, his claim was held compensable by order of the West Virginia Bureau of Employment Programs and he was provided with “conservative treatment of doctor’s visits, medications and physical therapy.”

At some point in the process of treatment, a Dr. Schmidt performed surgery on Gore at Charleston Area Medical Center and Gore returned to work six months after the injury.

In October 2009, Gore was seen by Dr. Ramanathan Padmanaban for an independent medical evaluation. Dr. Padmanaban found him to be “at maximum medical improvement” and the doctor determined that Gore was ready for an impairment rating.

“Dr. Padmanaban determined Petitioner’s impairment rating using the AMA Guide Fourth Edition as well as Rule 20, Section VII tables. Dr. Padmanaban asserted that using the range of motion model from AMA Guide Fourth Edition, Petitioner’s impairment rating was 18 percent whole person impairment,” the opinion states.

“Further, using Rule 20, Section VII tables, § 85-20-C, Petitioner was at lumbar category III, which gave him a range of 10 to 13 percent whole person impairment. Dr. Padmanaban went on to assert that since Petitioner’s impairment using the range of motion modes was 18 percent and he had a lumbar laminectomy and discectomy and also still had residual symptoms, that he would rate him as 13 percent whole person impairment because West Virginia Workers’ Compensation uses Rule 20, Section VII tables for impairment rating.

“The approved patient history form for back pain was completed by Mr. Padmanaban at the time of the IME. The approved back examination form was also completed by Dr. Padmanaban. Thereafter, on January 13, 2010, Petitioner was given a 13 percent permanent partial disability award. Petitioner appealed to the Office of Judges."

During a hearing before an administrative law judge, Gore’s counsel argued that “Rule § 85-20-64.1 is unlawful since it provides for the reduction of permanent partial disability assessments based upon preconceived ranges of impairment regardless of the extent of medical impairment the claimant actually received.”

Gore’s counsel argued that since the rule was unlawful, Gore was entitled to a 18 percent permanent partial disability award as opposed to the 13 percent partial disability award that he was given. The ALJ concluded that the Office of Judges had no authority to rule on the legality of the Rule and affirmed the order. The Board of Review also affirmed and Gore then appealed to the state Supreme Court.

“Based upon the requirements of W. Va. Code § 23-43b, the Board of Managers must adopt rules that include, but are not limited to, reasonable and standardized guidelines and parameters for range of permanent partial disability awards,” the court wrote.

“We find that the Board of Manager’s decision to determine impairment based upon AMA Range of Motion criteria found in the Fourth Edition of the AMA Guides is within its discretion to adopt rules to evaluate each claimant’s medical impairment as intended by the Legislature.

“The Board of Manager’s adoption of Rules §§ 85-20-64.1 and 64.2 and Tables 85-20-a, b and c, is therefore consistent with the intention of the Legislature as expressed in W. Va. Code § 23-4-6(i).

“Once whole person medical impairment has been calculated using the Range of Motion Model of Impairment found in the 4th Edition of the AMA Guides, West Virginia Code § 23-4-6(i) directs that the claimant be compensated with a permanent partial disability award in the same amount as the whole person medical impairment rating.

“In this specific claim, Dr. Ramanathan Padmanaban concluded that Petitioner has an 18 percent whole person medical impairment. Further, using Rule 20, Section VII tables, § 85-20-C, Dr. Padmanaban properly found Petitioner to be at lumbar category III, which gave him a range of 10 to 13 percent whole person impairment. Dr. Padmanaban properly referenced the AMA Guides, Fourth Edition and Rule 20, and conducted a complete and thorough evaluation of Petitioner and his medical records.

“There was no medical evidence of record to refute the findings and conclusions of Dr. Padmanaban and there was also no evidence to indicate the report of Dr. Padmanaban is unreliable.

“Therefore, for the foregoing reasons, we affirm the West Virginia Board of Review’s order entered March 31, 2011, which affirmed the decision of the Workers’ Compensation Office of Judges dated January 4, 2011, and the Claims Administrator’s order of January 13, 2010, which granted a 13 percent permanent partial disability award to the Petitioner.”

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