FILED
April 5, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
RONALD E. LUCAS,
Claimant Below, Petitioner
vs.) No. 21-0655 (BOR Appeal No. 2056281)
(Claim No. 2016018933)
BLUE CREEK MINING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Ronald E. Lucas, by Counsel Patrick K. Maroney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Blue Creek
Mining, LLC, by Counsel Steven K. Wellman and James W. Heslep, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted no
permanent partial disability award on April 1, 2019. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its January 4, 2021, Order. The Order was affirmed
by the Board of Review on July 22, 2021.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
(d) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the Office of Judges that was entered on the same issue
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in the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of constitutional
or statutory provision, is clearly the result of erroneous conclusions of law, or is
based upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo
reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Lucas, a fire boss, slipped and twisted his right knee while at work in a mine on January
7, 2016. On April 4, 2016, the claim was held compensable for right knee strain. David Soulsby,
M.D., performed an Independent Medical Evaluation on March 12, 2019, in which he noted that
an MRI showed a possible meniscus tear. Mr. Lucas stated that he underwent a right knee
arthroscopy with a partial medial and lateral meniscectomy on April 18, 2016. After examination,
Dr. Soulsby diagnosed torn medial and lateral meniscus of the right knee and preexisting mild
right knee osteoarthritis. He found that Mr. Lucas had reached maximum medical improvement
and assessed 0% whole person impairment. Dr. Soulsby noted that Mr. Lucas’s range of motion
and alignment were normal. Based on Dr. Soulsby’s report, the claims administrator granted no
permanent partial disability award on April 1, 2019.
In a January 21, 2020, Independent Medical Evaluation, Bruce Guberman, M.D., noted
right knee tenderness, crepitation, and decreased range of motion. He diagnosed history of right
knee strain with medial and lateral meniscal tears following a work injury. It was noted that Mr.
Lucas underwent a partial medial and lateral meniscectomy. Dr. Guberman found that Mr. Lucas
reached maximum medical improvement and required no further treatment. He assessed 4% whole
person impairment from Table 64 of the American Medical Association’s Guides to the Evaluation
of Permanent Impairment (4th ed. 1993) for undergoing a partial medial and lateral meniscectomy.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on July 14,
2020, in which he diagnosed right knee sprain with degenerative tear of the lateral meniscus and
complex tear of the posterior horn of the medial meniscus. He found that Mr. Lucas’s treating
physician, Dr. Castle, stated that the lateral meniscal tear was degenerative and therefore the partial
lateral meniscectomy should not be rated. Using the American Medical Association’s Guides, Dr.
Mukkamala assessed 1% impairment from Table 64 for the right knee partial medial
meniscectomy.
The Office of Judges affirmed the claims administrator’s decision granting no permanent
partial disability award in its January 4, 2021, Order. It found that the claim was held compensable
for right knee strain, and Dr. Soulsby opined that he suffered no permanent impairment as a result
of the injury. Dr. Guberman found 4% impairment for a partial medial and lateral meniscectomy,
and Dr. Mukkamala assessed 1% for a partial medial meniscectomy. The Office of Judges noted
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that none of the physicians found impairment for range of motion loss, and therefore, if Mr. Lucas
were to receive an impairment award, it would be based on his right knee surgery. Dr. Guberman
noted that the post-operative diagnoses were grade 2 chondromalacia of the medial femoral
condyle, grade 2 chondromalacia of the lateral tibial plateau, grade 2 chondromalacia of the patella,
multiple loose articular cartilage bodies, complex tear of the posterior horn o the medial meniscus
with displaced fragment into the intercondylar notch, and degenerative tears of the posterior horn
of the lateral meniscus. The Office of Judges found that none of the diagnoses are compensable
conditions in the claim, and surgery is not appropriate treatment for the compensable condition of
right knee sprain. Further, the surgery was not authorized in the claim. The Office of Judges
therefore concluded that Mr. Lucas was not entitled to an impairment rating for his right knee
surgery. Therefore, the reports of Drs. Guberman and Mukkamala were less reliable than that of
Dr. Soulsby who found 0% impairment. The Board of Review affirmed the Office of Judges’ Order
on July 22, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The only compensable condition in the claim is right knee sprain,
and therefore, any impairment Mr. Lucas has must be based on that diagnosis. Of the three
physicians of record, two, Dr. Mukkamala and Dr. Guberman, assessed impairment above 0%.
However, both impairment ratings were based on a noncompensable, unauthorized surgery. Dr.
Soulsby found 0% impairment based on normal range of motion findings. His report is the most
reliable of record.
Affirmed.
ISSUED: April 5, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
WOOTON, J., dissenting:
I respectfully dissent to the majority’s determination that petitioner is not entitled to a
permanent partial disability rating, despite undisputed evidence that he suffered a work-related
medial meniscal tear. As the majority opinion notes, after arthroscopic surgery, petitioner was
found with both lateral and medial meniscal tears; his own treating physician, however, stated that
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the lateral tear was degenerative. Petitioner underwent three independent medical examinations:
he was found to have no permanent impairment due to range of motion restrictions, but the surgery
to repair the tears alone called for a 4% permanent partial impairment rating. After eliminating
that portion of the 4% related to the degenerative lateral tear, the final IME physician found that
he was entitled to a 1% permanent partial disability impairment for the surgery attributable to the
medial tear. This impairment rating was rejected, however, because the Office of Judges found
that no meniscal tears were formally requested to be added as compensable diagnoses; as such,
petitioner was left with only a right knee sprain for which surgery was not indicated. The Board
of Review affirmed, and the majority follows suit under the same analysis.
“‘The Workmen’s Compensation Law is remedial in its nature, and must be given a liberal
construction to accomplish the purpose intended.’” Repass v. Workers’ Comp. Div., 212 W. Va.
86, 92, 569 S.E.2d 162, 168 (2002) (citation omitted). In the spirit of this remedial application,
this Court should not purport to be constrained by mere technicalities when it has, in other
instances, found such formalities to elevate “form over substance” and disregarded them. Moore
v. ICG Tygart Valley, LLC, 247 W. Va. 292, ___, 879 S.E.2d 779, 786 (2022). In Moore, the Court
found that the failure to formally request inclusion of an additional diagnosis was no impediment
to the addition of a compensable condition when the issue was “squarely before the Office of
Judges[.]” Id. at ___, 879 S.E.2d at 787. Likewise, in Best Buy v. Parrish, No. 15-1153, 2016 WL
7105264 (W. Va. Dec. 6, 2016) (memorandum decision), this Court affirmed the Office of Judges’
addition of a diagnosis where six treating physicians related the condition to the work injury,
despite the lack of formal request by way of a diagnosis update form.
Here, the lone issue in contention before the tribunals below was the proper PPD
impairment rating to be assigned to the surgery for the various meniscal tears, based upon their
relative causation. The relationship of the various meniscal tears to the work injury was the
primary focus of the competing IME physician testimony—not the compensability of the tears in
the first instance. In fact, it was undisputed before the tribunals below that the medial meniscal
tear was attributable to petitioner’s work injury and warranted at least 1% PPD. However, unlike
its handling the same issue in Moore and Best Buy, the majority endorses the tribunals’ refusal of
PPD because of the lack of formal request to add the meniscal tear to the compensable diagnoses.
Because the majority strays from its handling of similar technical failures, I respectfully
dissent.
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