CHARLESTON – The West Virginia Supreme Court of Appeals ruled that a Kroger employee who was injured at work rightfully received 3 percent whole person impairment disability.

Robert Wells appealed decisions of the Office of Judges and Board of Review, and argued he is entitled to an additional 14 percent permanent partial disability award based on the report of Dr. Bruce Guberman.

Kroger argued that Guberman’s report was excessive and that reports by Drs. Prasadarao Mukkamala and Syam Stoll contained more reasoned impairment ratings of 3 percent 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,” the Nov. 7 memorandum decision states.

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, according to the decision. An MRI of the shoulder also revealed mild tendinopathy of the distal supraspinatus tendon.

Wells was seen by Dr. Stanley Tao for his left shoulder and Tao noted that Wells underwent a left shoulder acromioplasty and distal clavicle excision on April 8, 2009. Wells underwent three independent medical evaluations to determine his level of impairment related to the compensable injury. All the evaluators agreed that Wells was at maximum medical improvement.

The claims administrator granted Wells a 3 percent permanent partial disability award. The Office of Judges found that Mukkamala’s report was the most credible and reliable report of record because his report fully considered all of Wells’ pre-existing degenerative changes and was more recent.

The Office of Judges discussed that in relation to the cervical spine rating, Mukkamala’s impairment was closest to Guberman in terms of whole person impairment attributable to range of motion defects.

The Office of Judges found that 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 Guberman’s report because he did not apportion for either a 2006 motor vehicle accident or a prior 2010 injury.

The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

“Dr. Mukkamala’s report is credible, reliable, and supported by the evidence in the record,” the decision states. “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.”

W.Va. Supreme Court of Appeals case number: 17-0188

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