FILED
STATE OF WEST VIRGINIA February 19, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
DAVID SCOTT,
Claimant Below, Petitioner
vs.) No. 19-1164 (BOR Appeal No. 2054297)
(Claim No. 2018005777)
WELDED CONSTRUCTION, LP,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David Scott, by Counsel E. William Harvit, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Welded Construction,
LP, by Counsel Jeffrey B. Brannon, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted a 10%
permanent partial disability award on February 27, 2018. The Workers’ Compensation Office of
Judges (“Office of Judges”) reversed the decision in its May 8, 2019, Order and granted a 20%
award. The Order was reversed by the Board of Review on November 21, 2019, and the claims
administrator’s grant of a 10% award was reinstated.
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. Scott, a truck driver/teamster, has a long history of lumbar spine injuries. He first
injured his lumbar spine in 1997 while at work. On October 30, 1998, J.P. Griffith, M.D, found in
an independent medical evaluation that Mr. Scott had 10% left spine impairment for the 1997
injury. The claims administrator granted a 10% permanent partial disability award for the lumbar
spine on December 4, 1998.
Mr. Scott underwent a lumbar MRI on October 29, 2006, that showed a moderate to large
disc herniation at L4-5, disc material mass effect on the L5 nerve root, and degenerative disc
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disease with mild bulges and spondylosis at L2-3 and L3-4 without herniations or stenosis. Mr.
Scott saw Ronald Hargraves, M.D., on December 10, 2006, and it was noted that he had an L4-5
disc herniation and recommended a CT scan.
Mr. Scott sustained a second work-related lumbar spine injury on April 9, 2009. An April
12, 2009, lumbar x-ray showed lumbarization of S1, slight dextroscoliosis at L4, straightening of
the normal lordotic curve, moderate disc space narrowing at L5-S1, and small osteophytes from
L3 to S1. A lumbar MRI was performed on May 1, 2009, and revealed a herniated L4-5 disc. A
June 4, 2009, lumbar CT scan showed an L4-5 disc extrusion causing severe central canal stenosis
effacing the left subarticular recess and deflecting the traversing left L5 nerve root. Mr. Scott
underwent a redo left L4-5 microdiscectomy on August 12, 2009.
In a January 4, 2010, independent medical evaluation, J. Paul Kern, M.D., assessed 5%
lumbar permanent partial disability for an April 9, 2009, work injury. In a January 12, 2010,
Agreement to Compensation of Employee and Employer form, Mr. Scott agreed to a lump sum
payment for his 5% permanent partial disability award. 1
Mr. Scott sustained the lumbar spine injury at issue on August 29, 2017, when he stepped
down from a truck and felt pain in his lower back. The incident resulted in a compensable L1-2
disc herniation for which he underwent surgery on September 2, 2017. Joseph Grady, M.D.,
performed an independent medical evaluation on February 8, 2018, in which he diagnosed L1-2
discectomy and arthrodesis due to the August 29, 2017, injury. It was noted that Mr. Scott had a
prior low back surgery that was unrelated to the August 29, 2017, injury. Using the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr.
Grady placed Mr. Scott in Lumbar Category IV-D of Table 75, which provides 12% impairment
for the prior lumbar fusion. Lumbar flexion and extension were invalid but right and left lateral
flexion was valid and showed 1% impairment for each. Dr. Grady’s total impairment finding was
14%. Dr. Grady then placed Mr. Scott in Lumbar Category IV from West Virginia Code of State
Rules § 85-20-C due to the lumbar fusion. Lumbar Category IV provides for 20% impairment, so
Dr. Grady adjusted his rating accordingly. The claims administrator granted a 10% permanent
partial disability award based on Dr. Grady’s evaluation. It apportioned 10% for the previously
granted 10% award.
Dr. Grady testified in an August 3, 2018, deposition that he performed an evaluation of Mr.
Scott for the injury at issue. On cross-examination, Dr. Grady admitted that he did not review
records for 1997 back injury. Dr. Grady stated that he placed Mr. Scott in Table 75 of the AMA
Guides due to his lumbar spine surgery. He testified that the August 29, 2017, injury resulted in a
new injury of the lumbar spine at a different level than the prior lumbar injuries. Dr. Grady asserted
that the entirety of his finding of 20% impairment was due to the August 29, 2017, injury.
In an August 28, 2018, Medical Narrative Report, Joon Lee, M.D., noted that Mr. Scott
was initially treated in the emergency room for saddle anesthesia and paresthesia. An MRI was
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The record indicates Mr. Scott was granted a 5% permanent partial disability award in
the state of Indiana for a lumbar spine injury.
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performed on September 2, 2017, showed a large L1-2 disc herniation and a facet cyst on the right
L1-2 joint. Mr. Scott’s symptoms were indicative of cauda equina syndrome, so surgery was
performed that day. It was noted that Mr. Scott had previously undergone surgery at L4-5. Dr. Lee
opined that the L1-2 disc herniation represented a distinct new injury separate from the L4-5 disc
injury. He further stated that the L1-2 disc herniation was not an exacerbation of Mr. Scott’s April
of 2009 injury, which required L4-5 surgery.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on February
11, 2019, in which he reviewed the reports of record, specifically that of Dr. Grady. Dr.
Mukkamala opined that Dr. Grady’s evaluation was in accordance with the AMA Guides and Rule
20; however, 15% should be subtracted from Dr. Grady’s assessment. Mr. Scott was previously
awarded 10% lumbar impairment for a 1997 injury and 5% lumbar impairment from the state of
Indiana. Therefore, Dr. Mukkamala opined that Mr. Scott should only be granted an additional 5%
impairment.
The Office of Judges reversed the claims administrator’s grant of a 10% permanent partial
disability award and instead granted a 20% award on May 8, 2019. The Office of Judges found
that Mr. Scott sustained an L1-2 herniated disc as a result of his August 29, 2017, injury, and
underwent surgery to treat the injury. After reaching maximum medical improvement, Mr. Scott
was evaluated by Dr. Grady, who assessed 20% impairment for the compensable injury. The
claims administrator granted a 10% award based on apportionment for a prior 10% lumbar spine
award granted for the L4-5 disc injury. The Office of Judges found that the injury at issue resulted
in an L1-2 disc herniation and is therefore a separate and distinct lumbar spine injury requiring its
own rating. Dr. Grady performed the only independent medical evaluation of record for the
compensable injury and opined that Mr. Scott’s prior lumbar spine injuries were unrelated to the
L1-2 disc herniation. The Office of Judges found Dr. Grady’s report to be supported by that of Dr.
Lee. Dr. Lee reviewed the medical records and opined that the L1-2 disc herniation represented a
separate, distinct new injury and that it did was not the result of an aggravation or exacerbation of
the April of 2009 L4-5 disc injury.
The Office of Judges found Dr. Mukkamala’s report to be unpersuasive and unsupported.
The Office of Judges noted that West Virginia Code § 23-4-9b clearly states that compensation for
awards is only affected when a claimant has preexisting impairment. The Office of Judges
determined that Mr. Scott had no preexisting impairment at L1-2 and was therefore entitled to the
full 20% impairment found by Dr. Grady for the compensable injury.
The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s grant of a 10% permanent partial disability award on November 21, 2019. It found
that West Virginia Code of State Rules § 85-20-64.2 provides instructions for the calculation of
lumbar spine impairment. It states that
[t]he range of motion methodology for assessing permanent impairment shall be
used. However, a single injury or cumulative injuries that lead to a permanent
impairment to the Lumbar Spine area of one’s person shall cause an injured worker
to be eligible to receive a permanent partial disability award within the ranges
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identified in Table § 85-20-C. The rating physician must identify the appropriate
impairment category and then assign an impairment within the appropriate range
designated for that category. [Emphasis added].
The Board of Review concluded that Dr. Mukkamala’s method of calculation was correct
and that Dr. Grady’s assessment should be apportioned for the prior permanent partial disability
award. The Board of Review determined that apportionment was appropriate for the prior 10%
permanent partial disability award but declined to apportion for the 5% award from the state of
Indiana. It found that the Indiana award was not a reliable assessment of impairment pursuant to
West Virginia law. Therefore, the Board of Review reinstated the claims administrator’s grant of
a 10% permanent partial disability award.
After review, we agree with the reasoning and conclusions of the Board of Review. Though
Mr. Scott’s most recent lumbar spine injury resulted in a disc herniation at a different level than
his prior injuries, West Virginia Code of State Rules § 85-20 provides that the lumbar spine is to
be assessed in its entirety. It does not provide for separate injuries to each individual lumbar disc.
In this case, Mr. Scott was previously granted a 10% permanent partial disability award for the
lumbar spine. Dr. Grady’s assessment of 20% lumbar spine impairment for the August 29, 2017,
injury must therefore be apportioned for the previous award. The Board of Review was correct to
reinstate the claims administrator’s grant of a 10% permanent partial disability award.
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. Therefore, the decision of the Board of Review
is affirmed.
Affirmed.
ISSUED: February 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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