STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DAVID W. MILLER,
FILED
Claimant Below, Petitioner September 28, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0638 (BOR Appeal No. 2053911) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2014026222)
ROGERS PETROLEUM, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David W. Miller, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Rogers Petroleum,
Inc., by Counsel Timothy E. Huffman, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted no
permanent partial disability award on July 13, 2016. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its January 30, 2019, Order. The Order was affirmed
by the Board of Review on June 13, 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.
Mr. Miller, a heavy equipment fueler, injured his lower back in the course of his
employment on August 23, 2013, while pulling on hoses. A treatment note from Raleigh General
Hospital that day indicates a diagnosis of degenerative disc disease. A lumbar MRI was performed
on September 15, 2013, and was negative for acute findings. The February 20, 2014, Employees’
and Physicians’ Report of Injury indicates Mr. Miller injured his lower back while pulling and
tugging on refueling hoses. The physician’s section was completed by John Kominsky, M.D., who
listed the affected body parts as the lumbar and sacral spine.
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Mr. Miller has a history of lower back injuries and issues. On July 24, 2012, he was treated
at Plateau Medical Center Emergency Department after he tripped and fell at his home. He reported
low back and left-sided chest pain. It was noted that he was on chronic pain medication. He was
diagnosed with acute pneumonia and acute lumbar strain. A lumbar x-ray showed compression
deformities at T10 and T11 and lumbar degenerative disc disease. On December 4, 2012, Mr.
Miller was injured at work when he tripped and fell onto his back and tailbone. A treatment note
from Raleigh General Hospital that day indicates he was treated for back pain and diagnosed with
degenerative disc disease and myofascial lumbar strain. Lumbar x-rays showed mild degenerative
disc disease from L4 to S1.
Mr. Miller sought treatment from Teresa Ricottilli, PA-C, on February 24, 2014, for back
pain due to an injury the year prior. Mr. Miller reported continued back pain. He was diagnosed
with chronic lower back pain. On March 4, 2014, Paul Bachwitt, M.D., performed an independent
medical evaluation for the December of 2014 compensable injury in which he noted the
compensable conditions as lumbar sprain and other injury of other sites of the trunk. Dr. Bachwitt
found that Mr. Miller had reached maximum medical improvement and assessed 5% impairment.
The claim at issue was held compensable for lumbar and sacrum sprains/strains on June
10, 2014. On August 11, 2014, Mr. Miller returned to Ms. Ricottilli. She noted that he had chronic
lower back pain since a December of 2012 work injury. Mr. Miller reported daily lower back pain
that radiated down his right leg. He also reported that he has fallen due to his right leg giving out.
He walked with a cane. An EMG/NCS was performed on October 13, 2015, for lower back pain
and right leg numbness, tingling, and weakness. It showed bilateral tarsal tunnel syndrome as well
as chronic L5-S1 radiculopathy. There was no evidence of an ongoing or active process.
In a May 16, 2016, independent medical evaluation, Paul Bachwitt, M.D., noted that Mr.
Miller had a work injury in another claim on December 4, 2012. Dr. Bachwitt opined that the
injury at issue, sustained on August 23, 2013, resulted in a lumbar sprain/strain. The injury should
have resolved within two to three months. Dr. Bachwitt further opined that Mr. Miller’s complaints
were the result of medical problems unrelated to the compensable injury at issue. Dr. Bachwitt
found that Mr. Miller had reached maximum medical improvement for the injury at issue and
assessed 5% impairment. He noted that Mr. Miller had previously received a 5% permanent partial
disability award for the lumbar spine and was therefore fully compensated. Based on his report,
the claims administrator granted no permanent partial disability award on July 13, 2016.
Robert Walker, M.D., performed an independent medical evaluation on May 14, 2018, in
which he assessed 10% impairment for range of motion loss, 5% under Category IIB of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993), and 5% from Table 83 for a total of 18% whole person impairment. He then placed Mr.
Miller in Lumbar Category III of West Virginia Code of State Rules § 85-20 and adjusted the
rating to 13% impairment.
In his October 1, 2018, independent medical evaluation, Prasadarao Mukkamala, M.D.,
noted the compensable conditions of lumbar and sacrum sprains. Dr. Mukkamala found 0% range
of motion impairment and 5% impairment from Category IIB of the American Medical
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Association’s Guides. He then placed Mr. Miller in Lumbar Category II of West Virginia Code of
State Rules § 85-20. Dr. Mukkamala stated that Mr. Miller had previously received a 5% award
and was therefore fully compensated.
The Office of Judges affirmed the claims administrator’s denial of a permanent partial
disability award in its January 30, 2019, Order. It found that there were three evaluations of record.
First, Dr. Bachwitt assessed 5% impairment. He found that Mr. Miller had previously received a
5% award and therefore was fully compensated. Second, Dr. Walker found 13% impairment. The
Office of Judges determined that he was the only evaluator of record to find neurological
impairment for L5 radiculopathy, which is not a compensable condition in the claim. Dr. Walker’s
assignment of Mr. Miller to Lumbar Category III was based on lumbar radiculopathy, and he did
not apportion his rating for the prior low back injury. The Office of Judges therefore concluded
that his findings were unreliable. Third, Dr. Mukkamala found 5% impairment for the lumbar
spine, which he found Mr. Miller was already compensated for by his prior permanent partial
disability award. The Office of Judges concluded that the findings of Drs. Bachwitt and
Mukkamala were the most persuasive of record. It therefore affirmed the denial of a permanent
partial disability award. The Board of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on June 13, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evaluations of Drs. Bachwitt and Mukkamala were more
reliable than that of Dr. Walker because Dr. Walker’s assessment included noncompensable,
preexisting conditions.
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.
ISSUED: September 28, 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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