STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
TIMOTHY MILLIGAN,
FILED
Claimant Below, Petitioner September 15, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 19-0625 (BOR Appeal No. 2053833) OF WEST VIRGINIA
(Claim No. 2016027012)
BLUE CREEK MINING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Timothy Milligan, by Counsel Edwin H. Pancake, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Blue Creek
Mining, LLC, by Counsel Steven K. Wellman, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted a 10%
permanent partial disability award on July 25, 2017. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its December 27, 2018, Order. The Order was
affirmed by the Board of Review on June 17, 2019.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. The facts and legal arguments are adequately
presented, and the decisional process would not be significantly aided by oral argument. Upon
consideration of the standard of review, the briefs, and the record presented, the Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.
A March 9, 2016, treatment note by Chong Kwan Kim, M.D., indicates Mr. Milligan
reported bilateral ankle pain that had been present since a 1991 motor vehicle accident. He also
reported pain in his lower back and down both legs. Dr. Kim diagnosed bilateral leg pain, low back
pain, and ankle pain. On April 20, 2016, Mr. Milligan was injured at work when he tripped and
fell over a block. A lumbar x-ray was performed that day and the results were normal. The claim
was held compensable for right shoulder strain and lumbar strain on May 6, 2016.
Mr. Milligan underwent right shoulder acromioplasty with rotator cuff repair on December
29, 2016. On June 21, 2017, he was treated by Robert McCleary, M.D., who noted that Mr.
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Milligan was unable to do his work conditioning due to a wrist injury. He was a vocational
rehabilitation candidate. It was noted that Mr. Milligan underwent a right shoulder acromioplasty
with rotator cuff tear on December 26, 2016. Mr. Milligan still had some spasms in his lower back.
Dr. McCleary recommended an independent medical evaluation and vocational rehabilitation. On
July 12, 2017, it was noted that Mr. Milligan’s hand fracture was healing well. The claim was
closed for temporary total disability benefits on July 13, 2017.
In a July 25, 2017, independent medical evaluation, Prasadarao Mukkamala, M.D., found
that spinal injections were aimed at treating noncompensable, degenerative spondyloarthropathy.
He found that Mr. Milligan had reached maximum medical improvement and assessed 6%
impairment for the lumbar spine. Dr. Mukkamala placed Mr. Milligan in Lumbar Category II. For
the right shoulder, Dr. Mukkamala assessed 4% whole person impairment. His total impairment
assessment was 10%. Based on his report, the claims administrator granted a 10% permanent
partial disability award representing 6% for the lumbar spine and 4% for the right shoulder on July
25, 2017.
Bruce Guberman, M.D., performed an independent medical evaluation on October 17,
2017, in which he diagnosed chronic post-traumatic strain of the lumbosacral spine superimposed
on preexisting degenerative changes; chronic post-traumatic strain of the right shoulder with
rotator cuff tear; improved left elbow contusion; and improved thoracic strain. He found a number
of range of motion abnormalities in the lumbar spine and right shoulder. Dr. Guberman opined
that Mr. Milligan had reached maximum medical improvement and assessed 8% lumbar spine
impairment and 7% right shoulder impairment for a total of 14% whole person impairment. Dr.
Guberman noted that Mr. Milligan broke his pinky finger during work conditioning and opined
that the condition should be held compensable.
Marsha Lee Bailey, M.D., performed an independent medical evaluation on April 23, 2018,
in which she diagnosed pre-existing chronic lower back pain without true radiculopathy and
chronic right shoulder pain with range of motion limitations. She noted that Mr. Milligan had
significant symptom magnification. Dr. Bailey found his lumbar range of motion measurements
were invalid due to pain restriction. She placed Mr. Milligan in Lumbar Category IIB of Table 75
of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993), which allows for 5% impairment. Dr. Bailey apportioned the entire amount to
preexisting conditions. For the right shoulder, Dr. Bailey assessed 4% right shoulder impairment
and apportioned 1% to preexisting conditions, based on left shoulder range of motion
measurements. Her total impairment assessment was therefore 3%.
On August 21, 2018, David Jenkinson, M.D., performed an independent medical
evaluation in which he assessed 5% low back impairment using the Diagnosis Related Estimate
(“DRE”). He also stated that 5% impairment could be found using West Virginia Code of State
Rules § 85-20 and the American Medical Association’s Guides. He also stated that range of motion
measurements were invalid due to voluntary guarding. For the right shoulder, Dr. Jenkinson
assessed 4% impairment. In a September 7, 2018, addendum, Jenkinson stated that he had
reviewed additional records since he prepared his August 21, 2018, report. His opinion was
unchanged.
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The Office of Judges affirmed the claims administrator’s grant of a 10% permanent partial
disability award on December 27, 2018. It found that Drs. Bailey and Guberman rated Mr. Milligan
under Table 75, Lumbar Category IIB for 5% impairment. Dr. Jenkinson did not rate Mr. Milligan
under Table 75. Using Rule 20, Drs. Mukkamala, Guberman, and Bailey all placed Mr. Milligan
in Lumbar Category II. Dr. Jenkinson rated Mr. Milligan using the DRE but also stated that he
could be assigned 5% impairment under Lumbar Category II of Rule 20. The Office of Judges
noted that Drs. Mukkamala and Guberman found reliable range of motion measurements while
Drs. Bailey and Jenkinson found invalid measurements due to voluntary pain guarding.
The Office of Judges noted that the employer argued that Dr. Guberman’s rating was
unsupported by the evidence of record since Mr. Milligan had preexisting low back issues.
Nevertheless, the Office of Judges found that Dr. Guberman’s report was performed in accordance
with the American Medical Association’s Guides. Regarding Dr. Jenkinson’s report, the Office of
Judges found that his report was confusing, and it was unclear why he referred to the DRE model
of impairment rating.
For the right shoulder, the Office of Judges found that Drs. Mukkamala, Bailey, and
Jenkinson had similar findings. Drs. Mukkamala and Jenkinson found 4% impairment. Dr. Bailey
found 4% as well but apportioned 1% to preexisting conditions. Dr. Guberman found 7%
impairment but the Office of Judges noted that he was the only evaluator of record who did not
find symptom magnification. Based on a preponderance of the evidence, the Office of Judges
ultimately concluded that Mr. Milligan failed to show that he is entitled to more than 10%
permanent partial disability. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order on June 17, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Milligan’s argument rests on the report of Dr. Guberman.
His report is not as reliable as the other evaluations of record. Dr. Mukkamala’s findings were not
compatible with the other evaluations and the medical record.
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 based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
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ISSUED: September 15, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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