CHARLESTON – The West Virginia Supreme Court of Appeals has issued a decision, ruling that a shuttle car operator who was injured during the course of his employment was fully compensated with a 5 percent permanent partial disability award.

James R. Orren injured his right knee and ankle in the course of his employment while loading rock dust into a scoop bucket for Magnum Coal Company.

“We are asked to determine the amount of permanent partial disability sustained as a result of this injury,” the decision states. “After a thorough review of the evidence, we find that Mr. Orren was fully compensated by his prior 5% permanent partial disability award and is therefore entitled to no additional award.”

Orren’s claim was held compensable for fracture of the medial malleolus and contusion of the knee.

In order to determine the amount of permanent impairment sustained, Dr. Paul Bachwitt performed an independent medical evaluation and found Orren had reached maximum medical improvement and assessed one percent impairment. Orren was then granted a 1 percent permanent partial disability award.

Next, Dr. Bruce Guberman performed an independent medical evaluation and found that Orren had reached maximum medical improvement and recommended 4 percent impairment.

Following Guberman’s assessment, Dr. Saghir Mir performed an independent medical evaluation. He found that Orren had reached maximum medical improvement and assessed 3 percent impairment.

Based on his opinion, the Office of Judges reversed the claims administrator’s grant of a 1 percent award and granted Orren a 3 percent permanent partial disability award instead.

Guberman then performed another independent medical evaluation in which he noted that Orren reported that his symptoms had progressively worsened without additional injury.  He found that Orren had reached maximum medical improvement and assessed 5 percent impairment.

Another opinion was sought and Dr. Prasadarao Mukkamala performed an independent medical evaluation and recommended 1 percent impairment.

The claims administrator determined that no additional permanent partial disability award above the 3 percent already granted was necessary. However, the Office of Judges reversed the decision and granted a 5 percent permanent partial disability award.

This decision was later affirmed by the Board of Review.

Dr. Robert Walker next performed an independent medical evaluation and assessed a 10 percent impairment.

Guberman then, again, performed his third evaluation and noted that Orren’s symptoms had progressively worsened. He recommended a total of 17 percent impairment.

Two other previous doctors performed independent medical evaluations and both assessed 4 percent impairment.

The claims administrator granted no additional permanent partial disability award beyond the 5 percent already awarded. The Office of Judges affirmed the decision and noted that Orren had gone almost five years in between treatments for the compensable injury.

On appeal before the Court, Orren argues that Guberman found a progression of his impairment. Because Guberman had previously evaluated him, he was in the best position to determine if there was an aggravation or progression of the condition.

Orren further asserted that Guberman’s opinion does not need to be corroborated in order to be credible. Magnum Coal Company argued that Guberman was the only physician of record to find additional impairment for the varus deformity, and his opinion is not corroborated by the evidence of record.

“After review of the evidence of record and the parties’ arguments, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states. “A preponderance of the evidence indicates Mr. Orren has been fully compensated by the 5% permanent partial disability award he has already received. No additional award is warranted.”

The court found that the decision of the Board of Review was not in clear violation of any constitutional or statutory provision, nor was 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: 17-0158

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