Supreme Court agrees with Workers’ Compensation Board in appeal

By Kyla Asbury | Jan 8, 2018

CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the West Virginia Workers’ Compensation Board did not violate any constitutional or statutory provision in its decision to award additional permanent partial disability to an employee of Mastec Inc.

The issue on appeal is whether Mark Skinner is entitled to an additional award of permanent partial disability for his injuries, according to the Dec. 19 memorandum decision.

“The claims administrator granted Mr. Skinner a 28% permanent partial disability award on July 22, 2013,” the decision states. “On May 25, 2016, the Office of Judges reversed the decision of the claims administrator, and awarded Mr. Skinner a 31% permanent partial disability award.”

The appeal arises from the Board of Review’s June 13 final order, in which the board remanded the claim, for good cause shown, to the Office of Judges with instructions to issue a new time frame order to allow for the full and complete development of the evidence, and for any other proceedings the Office of Judges finds necessary.

“After review, we agree with the decision of the Board of Review,” the decision states. “Mr. Skinner sustained significant injuries as a result of his work-related motor vehicle accident which resulted in years of rehabilitation, multiple surgeries, and ongoing treatment. Another independent medical evaluation would allow the Office of Judges to have a better assessment of Mr. Skinner’s impairment related to his compensable injuries. The Board of Review’s decision should be affirmed.”

The court found 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.

Skinner was injured in a motor vehicle accident while driving a company truck on Feb. 14, 2011.

Skinner sustained injuries to his legs, head, hip, kidney, lung and ribs and was initially treated at Braxton Memorial Hospital, where he was diagnosed with a fracture of the left femur, a fracture of the right femur, fractures of the fifth and sixth rib and a left acetabular fracture.

He also suffered a fracture/dislocation of the left hip socket and femoral head fracture. Skinner was transferred to Charleston Area Medical Center for further treatment.

Skinner was evaluated by Dr. Frederick Armbrust the following day and Armbrust noted that Skinner sustained extensive orthopedic injuries and a small pneumothorax on the right side. A cranial CT scan revealed two areas of intracranial hemorrhage.

On Feb. 17, 2011, Dr. James Maurer performed an open reduction internal fixation of the posterior wall of the left acetabulum with trochanteric slide osteotomy, removal of femoral head pieces from the rotation of the femoral head, and an incisional VAC placement.

The post-operative diagnosis was left posterior wall acetabular fracture with femoral head dislocation and fracture. Dr. Janet Jenkins evaluated Skinner and recommended a rehabilitation stay due to his traumatic brain injury and he was transferred to the CAMC Acute Rehab Unit on Feb. 25, 2011, where he remained until his discharge on March 29, 2011.

A discharge summary completed by Dr. Kenneth Wright recommended outpatient therapy, and the need for 24 hour supervision and attendant care.

Skinner began working with Desiree Poling, a speech-language pathologist, on April 12, 2011. Poling’s clinical impression was mild to moderate cognitive deficit in some cognitive linguistic areas. Poling recommended six months of speech-language therapy.

Skinner developed a glottic web due to six days of intubation following the motor vehicle accident and, although he underwent surgery on Aug. 26, 2011, to divide the glottis band, he redeveloped a glottis web. Skinner underwent additional surgery on May 11, 2012, for lysis of the glottic web.

Skinner was evaluated by Dr. Ailia Ali for shortness of breath and cough on Sept. 10, 2012, and he experienced significant improvement following lysis of the glottic scar bed, but he continued to suffer mild shortness of breath with exertion, and a productive cough. Pulmonary function tests showed moderate obstruction with air trapping.

Ali recommended a chest x-ray and full pulmonary function tests including spirometry, lung volumes, and diffusion capacity.

On July 10, 2013, Dr. Joseph Grady performed an independent medical evaluation of Skinner and found him to be at maximum medical improvement in regard to his many compensable injuries. Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Grady found Skinner to have a combined total of 28 percent whole person impairment for all of his compensable injuries.

On July 22, 2013, Skinner was granted a 28 percent permanent partial disability award based upon Grady’s report.

On Sept. 15, 2014, the Office of Judges reversed the claims administrator’s Order of July 22, 2013, and granted Skinner an additional 25 percent permanent partial disability above the amount previously granted, for a total award of 53 percent.

Mastec Inc. appealed the award and, on appeal, the employer requested a remand of the claim to take additional evidence. On Feb. 5, 2015, the Board of Review granted Mastec Motion and remanded the claim to the Office of Judges for further development of the facts in the claim.

Following the Board of Review’s remand, Dr. ChuanFang Jin performed an independent medical evaluation of Skinner on Feb. 8, 2016 and, using the Combined Values Chart, Jin found Skinner to have a combined total of 31 percent whole person impairment for the compensable injuries.

On May 25, 2016, the Office of Judges issued a Final Decision reversing the July 22, 2013, Order of the claims administrator.

The Office of Judges granted Skinner an additional 3 percent permanent partial disability award above the previously granted 28 percent award, according to the decision.

“In a June 13, 2017, Order, the Board of Review discussed the claim’s procedural history, and noted that Mr. Skinner suffered multiple significant injuries,” the decision states. “The Board concluded that additional evidence is necessary for a full and complete development of the facts of the claim.”

The Supreme Court agreed with the Board of Review’s decision and affirmed it.

W.Va. Supreme Court of Appeals case number: 17-0619

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