IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
GARY WHITED, June 15, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-300 (JCN: 2019006554)
BLACKHAWK MINING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Gary Whited appeals the November 16, 2022, Order of the Workers’
Compensation Board of Review (“Board”). Respondent Blackhawk Mining, LLC filed a
timely response.1 Petitioner did not file a reply brief. The issue on appeal is whether the
Board erred in reversing the claim administrator’s decision to grant petitioner no additional
permanent partial disability (“PPD”) above a previous award of 3% and instead granting
him an additional 2% PPD award for a total of a 5% PPD award.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s Order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Relevant to this appeal, Mr. Whited previously sustained non-compensable injuries
to his left wrist and forearm. Specifically, Mr. Whited fractured his wrist as a child and,
more recently, fractured his left forearm in an accident in 2003, which resulted in surgery
and internal plate and screw fixation.
Regarding the instant workplace injury, Mr. Whited sustained multiple facial
fractures and a left wrist fracture on September 6, 2018, when a fire hose burst, and the
nozzle struck him in the face. On May 29, 2019, in two separate orders, the claim
administrator held the following as compensable conditions in the claim: LeFort II fracture,
LeFort III fracture, zygomatic fracture, nasal bone fractures, fracture of the orbital floor,
fracture of the mandible, laceration without foreign body, dental
fracture/dislocation/avulsion, and left ulna styloid fracture. Mr. Whited underwent multiple
facial and sinus surgeries related to his facial fractures.
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Petitioner is represented by Stephen P. New, Esq., and Amanda J. Taylor, Esq.
Respondent is represented by Sean Harter, Esq.
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When the time came to assess Mr. Whited’s permanent disability resulting from the
work-related injury, he underwent an independent medical evaluation (“IME”) performed
by Joseph Grady, M.D., in December of 2019. Using the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“the Guides”), Dr.
Grady assessed no impairment for Mr. Whited’s left wrist. Regarding Mr. Whited’s facial
fractures, Dr. Grady found minimal facial scaring and no bony deformity or loss of function
or movement in the face. Dr. Grady placed Mr. Whited in Class 1 for facial impairment
under Section 9.2 of the Guides, which is limited to disorders of the cutaneous structures
such as visible scars and abnormal pigmentation and allows for an impairment rating in the
range of 0%-5%. Here, Dr. Grady assessed 3% whole person impairment, which was his
final recommendation. By two orders issued on January 2, 2020, the claim administrator
granted Mr. Whited a 0% PPD award for his left wrist and a 3% PPD award for his facial
injuries.
Mr. Whited underwent a second IME on March 13, 2020, which was performed by
Robert Walker, M.D. Using the Guides, Dr. Walker assessed 6% whole person impairment
for the left wrist due to reduced range of motion. Regarding the facial fractures, Dr. Walker
placed Mr. Whited in Class 2 for facial impairment under Section 9.2 of the Guides, which
relates to loss of supporting structure of part of the face, such as depressed cheek, nasal, or
frontal bones. Class 2 allows for an impairment rating in the range of 5%-10%, and Dr.
Walker found Mr. Whited to have a 10% impairment due to hardware insertion and bone
grafting to repair the facial fractures. Using the combined values chart, Dr. Walker
recommended a total of 15% whole person impairment.
Subsequently, Mr. Whited and his treating physician, Mae Hyre, M.D., completed
a Claim Reopening Application for Permanent Partial Disability and attached Dr. Walker’s
report in support.2 Per the employer’s request, Dr. Grady reevaluated Mr. Whited in
November of 2020. Dr. Grady opined that “the Guides does not allow impairment specially
for particular surgeries but rather for the lingering consequences such as on-going residual
deformity like ‘loss of supporting structure’ which I do not see presently.” As such, Dr.
Grady opined that Mr. Whited’s impairment was encompassed within the criteria for Class
1 and reiterated his opinion that Mr. Whited was entitled to a 3% whole person impairment
rating for the compensable injuries. By order dated November 23, 2020, the claim
administrator granted no additional PPD award based upon Dr. Grady’s recommendation.
Mr. Whited underwent another IME on April 26, 2021, which was performed by
Michael Kominsky, D.C. Using the Guides, Dr. Kominsky assessed 4% whole person
impairment for the left wrist due to reduced range of motion. Rather than rating Mr. Whited
under the criteria for facial impairment, Dr. Kominsky rated Mr. Whited’s facial injuries
under Table 2 for impairment for skin disorders. Dr. Kominsky placed Mr. Whited in Class
2
Mr. Whited had failed to timely protest the claim administrator’s January 2, 2020,
orders awarding him a 3% PPD award and, therefore, sought to reopen the claim.
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2, which applies when signs and symptoms of the skin disorder are present or intermittently
present, there is limitation in the performance of some of the activities of daily living, and
intermittent to constant treatment may be required. Class 2 allows for an impairment rating
in the range of 10%-14%. Dr. Kominsky assessed 10% whole person impairment on the
basis of Mr. Whited’s multiple post-traumatic scars and facial disfigurement. After
applying the combined values chart, Dr. Kominsky recommended a total impairment rating
of 14%.
On October 13, 2021, Mr. Whited underwent another IME, which was performed
by Prasadarao Mukkamala, M.D. Using the Guides, Dr. Mukkamala found no impairment
in the left wrist, as range of motion testing was normal. Regarding the facial injuries, Dr.
Mukkamala placed Mr. Whited in Class 1 for facial impairment under Section 9.2 of the
Guides because he noted no deformity, disfigurement, asymmetry, or loss of supporting
structures. Dr. Mukkamala assessed 3% whole person impairment for the facial injuries,
which was his final recommendation.
Mr. Whited underwent an IME on December 15, 2021, which was performed by
Syam Stoll, M.D. Using the Guides, Dr. Stoll found Mr. Whited to have no impairment for
the left wrist as range of motion testing was normal. Regarding the facial injuries, Dr. Stoll
also placed Mr. Whited in Class 1 for facial impairment under Section 9.2 of the Guides.
Dr. Stoll found no deformity or loss of facial structure but did note scarring on Mr.
Whited’s face as a result of his surgeries. As such, Dr. Stoll assessed 5% whole person
impairment for “scars and internal facial fracture repairs.”
Dr. Stoll also opined that the recommendations of Dr. Walker and Dr. Kominsky
were not supported by the objective medical evidence. For instance, Dr. Stoll stated that
Dr. Walker’s assessment of 10% whole person impairment for facial injuries was inflated
because Mr. Whited did not meet the criteria for Class 2 for facial injuries under Section
9.2. Dr. Stoll stated Mr. Whited had no depressed cheek, nasal, or frontal bones. Dr. Stoll
further noted that Dr. Walker’s impairment rating for the left wrist was not supported by
the medical evidence, as the fracture was treated non-operatively and would not have
resulted in a 6% impairment. Dr. Stoll noted that, interestingly, Mr. Whited’s wrist showed
no range of motion deficits in his own evaluation, despite the fact that Mr. Whited had
extensive preexisting injuries with two fractures and “pre-claim ORIF [open reduction and
internal fixation] with hardware placement.” As to Dr. Kominsky, Dr. Stoll opined that his
recommendation was likewise inflated.
Dr. Mukkamala authored a supplemental report dated June 30, 2022, wherein he
stated he had reviewed additional medical evidence. Dr. Mukkamala stated his findings
were similar to those of Drs. Grady and Stoll. He further opined that the findings of Dr.
Walker and Dr. Kominsky were not supported by the photographs taken during Dr. Stoll’s
evaluation, which showed no asymmetry, disfigurement, or adverse cosmetic result in the
face. According to Dr. Mukkamala, Dr. Kominsky had also used the wrong methodology
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in rating Mr. Whited’s facial impairment. Lastly, Dr. Mukkamala noted no range of motion
issues with Mr. Whited’s wrist but stated if Mr. Whited had sustained a left wrist
impairment, Dr. Walker and Dr. Kominsky should have apportioned for the prior injuries.
However, because he, Dr. Grady, and Dr. Stoll had found no impairment, they did not
apportion as “one cannot apportion zero % impairment.”
By order dated November 16, 2022, the Board reversed the claim administrator’s
order and granted Mr. Whited a 5% PPD award in accordance with Dr. Stoll’s
recommendation. The Board found that the reports of Dr. Walker and Dr. Kominsky were
not persuasive. Regarding the facial injuries, the Board found that Dr. Walker’s decision
to place Mr. Whited in Class 2 for facial injuries under Section 9.2 was not consistent with
the evidence of record. The Board noted that Drs. Stoll, Grady, and Mukkamala did not
believe that Mr. Whited met the criteria for Class 2 and further noted that the photographs
taken during Dr. Stoll’s evaluation corroborated their findings. The Board similarly
disregarded Dr. Kominsky’s recommendation as “not in line with the weight of the medical
evidence” and noted that he was the only physician to evaluate Mr. Whited using the skin
disorder section of the Guides.
The Board found that Dr. Walker and Dr. Kominsky had also assessed impairment
for the left wrist which was against the weight of the evidence. The Board found that the
three other evaluators found no range of motion abnormalities and, moreover, Mr. Whited
had suffered radial and ulnar shaft fractures in 2003 requiring open reduction and internal
fixation which would have necessitated apportionment had there been an impairment.
Based on the forgoing, the Board disregarded the reports of Dr. Walker and Dr. Kominsky
and found that the reports of Drs. Stoll, Grady, and Mukkamala held an equal amount of
evidentiary weight. Therefore, the Board resolved the claim in the manner most consistent
with Mr. Whited’s position pursuant to West Virginia Code § 23-4-1g(a) (2003) by
reversing the claim administrator’s order and granting Mr. Whited a 5% PPD award in
accordance with Dr. Stoll’s recommendation.3 Mr. Whited now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
3
Pursuant to West Virginia Code § 23-4-1g(a), in part, “[i]f, after weighing all of
the evidence regarding an issue in which a claimant has an interest, there is a finding that
an equal amount of evidentiary weight exists favoring conflicting matters for resolution,
the resolution that is most consistent with the claimant’s position will be adopted.”
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petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).
On appeal, Mr. Whited argues that the Board erred in awarding a 5% PPD award in
accordance with Dr. Stoll rather than adopting either a 15% PPD award as supported by
Dr. Walker, or a 14% award as supported by Dr. Kominsky. According to Mr. Whited, his
treating physician, Dr. Hyre, was in the best position to evaluate his condition and she
agreed with Dr. Walker’s assessment. Mr. Whited argues that neither Dr. Grady nor Dr.
Mukkamala took into consideration the significance of the plates and grafts that were
required to “reconstruct [his] face” and that, as such, their evaluations resulted in artificially
low impairment ratings. With regard to the left wrist injury, Mr. Whited avers that Dr.
Walker and Dr. Kominsky obtained similar measurements in range of motion testing. As
such, Mr. White contends that Dr. Walker and Dr. Kominsky, along with Dr. Hyre, “best
accounted for all impairments” and their opinions should constitute “the greater weight of
the credible, medical evidence.”
Upon our review, we find that Mr. Whited failed to demonstrate that the Board’s
findings and conclusions were clearly wrong. As the Supreme Court of Appeals of West
Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards
of review are deferential ones which presume an agency’s actions are valid as long as the
decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 2, Stewart v.
W. Va. Bd. of Exam’rs for Registered Pro. Nurses, 197 W. Va. 386, 475 S.E.2d 478 (1996)
(citations omitted). With this high standard in mind, we are unable to conclude that the
Board erred in granting Mr. Whited a 5% PPD award in accordance with Dr. Stoll’s
opinion.
The Board found that the recommendations of Dr. Walker and Dr. Kominsky were
unpersuasive. As noted by Drs. Stoll, Mukkamala, and Grady, Mr. Whited did not meet the
criteria of a Class 2 facial impairment under Section 9.2 of the Guides. The Board noted
that their opinions were corroborated by the photographs of Mr. Whited’s face that were
taken by Dr. Stoll during his evaluation. As such, Mr. Whited fell squarely within the
criteria for Class 1, which allowed for an impairment rating in the range of 0%-5%, as
recommended by Drs. Stoll, Mukkamala, and Grady. Further, regarding the wrist, Dr.
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Walker and Dr. Kominsky were the only evaluators to find range of motion abnormalities.
Drs. Stoll, Mukkamala, and Grady found normal range of motion testing and no
impairment, and the Board found that their evaluations were more persuasive. Moreover,
the Board noted that, even had there been some sort of impairment in Mr. Whited’s left
wrist, apportionment would have been necessary given his significant history of injury in
that wrist, and both Dr. Walker and Dr. Kominsky failed to apportion for such injury. Given
the evidence before us, we conclude that the Board did not clearly err in granting the 5%
PPD award, and Mr. Whited is entitled to no relief in this regard.
Accordingly, we affirm.
Affirmed.
ISSUED: June 15, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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