CHARLESTON – The West Virginia Supreme Court of Appeals has issued a decision, ruling that an employee for the West Virginia Division of Motor Vehicles should receive a 20 percent permanent partial disability award.

Mark A. Minor appealed the decision of the West Virginia Workers’ Compensation Board of Review, according to the Dec. 19 memorandum decision.

“The issue on appeal is the amount of Mr. Minor’s permanent partial disability award,” the decision states. “On August 17, 2015, the claims administrator granted a 10% permanent partial disability award. The Office of Judges reversed the claims administrator’s decision in its July 28, 2016, Order and granted a 20% permanent partial disability award. The Order was reversed by the Board of Review on December 27, 2016. The Board of Review reinstated the 10% permanent partial disability award.”

The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument, according to the decision.

“Upon consideration of the standard of review, the briefs, and the record presented, the Court finds that the Board of Review’s decision is clearly wrong based upon the evidentiary record,” the decision states. “This case satisfies the ‘limited circumstances’ requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.”

Minor injured his right knee on Sept. 4, 2012, when he rear-ended another vehicle.

Continued problems with the right knee led to Minor undergoing a total right knee arthroplasty on Feb. 4, 2015. The pre- and post-operative diagnosis was severe right knee degenerative joint disease.

Dr. Prasadarao Mukkamala performed an independent medical evaluation and assessed 20 percent whole person impairment. Due to the findings on the right knee x-ray performed on Feb. 18, 2004, Mukkamala apportioned 10 percent of the assessed impairment to the pre-existing arthrosis and the other 10 percent to the 2012 injury.

Based on Mukkamala’s report, the claims administrator granted a 10 percent permanent partial disability award on Aug. 17, 2015. The Office of Judges reversed the claims administrator on July 28, 2016, and awarded a 20 percent permanent partial disability award.

“The Board of Review reversed and vacated the Order of the Office of Judges and reinstated the claims administrator’s award of 10% permanent partial disability on December 27, 2016,” the decision states. “It found Mr. Minor was entitled to a 10% permanent partial disability award based on the case law and Dr. Mukkamala’s impairment evaluation.”

After review, the Supreme Court found the Board of Review erred in reversing the Office of Judges’ Order.

“For the foregoing reasons, we find that the decision of the Board of Review is the result of a material misstatement or mischaracterization of the evidentiary record,” the decision states. “Therefore, the decision of the Board of Review is reversed and remanded with instructions to reinstate the Office of Judges’ Order awarding 20% permanent partial disability.”

Chief Justice Allen H. Loughry II authored a dissenting opinion.

“I dissent from the majority’s decision to grant the claimant a 20% permanent partial disability award for his right knee injury,” he wrote. “The only impairment evaluation in the record was completed by Dr. Prasadarao Mukkamala. While Dr. Mukkamala concluded that the claimant has a 20% whole person impairment, he only attributed 10% of that impairment to the compensable injury, concluding that the remaining 10% was caused by the claimant’s preexisting arthrosis.”

The majority’s reliance upon a 2014 report wherein Mukkamala stated that the claimant needed a total knee replacement arthroplasty due to his work injury is misplaced, Loughry wrote.

“Just because the claimant’s work injury may have culminated in certain medical treatment, it does not necessarily follow that all residual impairment is attributable to that injury,” Loughry wrote. “Indeed, the record here shows that the claimant fractured his knee in 1993 which resulted in his preexisting arthrosis that was diagnosed by x-ray in 2004.”

Because the only impairment evaluation in this case indicates the claimant has a 10 percent whole person impairment attributable to the compensable injury, the decision of the Board of Review granting a 10 percent permanent partial disability award should have been affirmed, according to Loughry’s dissent.

W.Va. Supreme Court of Appeals case number: 17-0077

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