CHARLESTON – The West Virginia Supreme Court of Appeals agreed with the West Virginia Workers' Compensation Board of Review in its disability award to an in-home care provider.
Thelma Sizemore appealed the decision of the West Virginia Workers’ Compensation Board of Review regarding permanent partial disability.
The claims administrator granted a 6 percent permanent partial disability award on July 5, 2017, and the Office of Judges reversed the decision in its July 31, 2018, order, granted a 2 percent permanent partial disability award, and found that any benefits paid in excess of 2 percent be deemed an overpayment, according to the Dec. 6 memorandum decision.
The order was affirmed by the Board of Review on Jan. 28.
"After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review," the decision states. "Permanent partial disability awards are awarded to employees only after they have reached maximum medical improvement."
Sizemore, an in-home care provider, was injured in the course of her employment on Dec. 13, 2016, when she slipped off the back of a truck. A treatment note from Beckley Appalachian Regional Healthcare that day indicated Sizemore was seen for a work-related left wrist injury.
An X-ray showed a comminuted fracture of the distal radius, subluxation of the ulnocarpal joint, positive ulnar variance and soft tissue swelling around the wrist joint.
A CT scan showed a distal radius fracture, a proximal fracture of the distal radius that was extruding into the distal radioulnar joint and positive ulnar variance. Sizemore underwent left wrist surgery for a distal radius fracture on Dec. 14, 2016.
The Employees’ and Physicians’ Report of Injury was completed on Dec. 19, 2016, and the physician’s section was completed at Beckley Appalachian Regional Healthcare and lists the diagnosis as a displaced fracture of the left distal radius. The claim was held compensable for left distal radius fracture on Dec. 29, 2016.
Dr. Joseph Grady performed an independent medical evaluation in which he diagnosed left wrist distal radius fracture in May 2017 and noted she had recently undergone a functional capacity evaluation but he did not have access to the results. He found that she had reached maximum medical improvement and assessed 6 percent impairment for a range of motion loss in the left wrist.
The claims administrator granted a 6 percent permanent partial disability award based on Grady’s initial evaluation in July 2017.
Dr. Prasadarao Mukkamala performed an independent medical evaluation on Jan. 24, 2018, in which he found no range of motion deficits in the left elbow and mild limitations in the left wrist. Mukkamala opined that Sizemore had reached maximum medical improvement. He assessed 2 percent impairment for left wrist range of motion loss. Mukkamala found that her left wrist range of motion had improved significantly since Grady’s evaluation.
The Office of Judges reversed the claims administrator’s decision granting a 6 percent permanent partial disability award and instead granted a 2 percent permanent partial disability award in July 2018.
The Office of Judges further ordered that any permanent partial disability benefits paid in excess of 2 percent be deemed an overpayment. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its order on Jan. 28.
Grady’s conclusion of 6 percent impairment is not reliable as he found after his evaluation that Sizemore was not at maximum medical improvement, the decision notes.
"For the foregoing reasons, 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 so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, there is insufficient support to sustain the decision," the Supreme Court wrote.
West Virginia Supreme Court of Appeals case number 19-0161
