Steven Whittington v. Hardman Supply Co. ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS February 4, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
STEVEN WHITTINGTON, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 12-0697 (BOR Appeal No. 2046961)
(Claim No. 2009081604)
HARDMAN SUPPLY COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Steven Whittington, by William Gerwig III, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Hardman Supply Company, by
Sean Harter, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated June 1, 2012, in which
the Board affirmed a February 28, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 21, 2012, decision
granting the petitioner a 13% permanent partial disability award. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.
This Court has considered the parties’ briefs and the record on appeal. 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. Whittington was injured in the course of his employment when he fell while fixing a
ceiling tile. He suffered an injury to his lumbar spine, and on February 21, 2011, the claims
administrator granted him a 13% permanent partial disability award. This award was based upon
an independent medical evaluation by Dr. Prasadarao Mukkamala. Dr. Mukkamala rated Mr.
Whittington at 15% whole person impairment using the American Medical Association’s Guides
to the Evaluation of Permanent Impairment, (4th ed. 1993). Pursuant to West Virginia Code of
State Rules § 85-20-Table C (2006), Dr. Mukkamala adjusted the impairment rating to 13%.
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The Office of Judges upheld the decision of the claims administrator in its February 28,
2012, Order. It noted that Dr. Mukkamala properly used the American Medical Association’s
Guides, and West Virginia Code of State Rules § 85-20-Table C to find Mr. Whittington’s
impairment rating. The Office of Judges found that this Court upheld the use of the Rule 20
guidelines to determine permanent impairment in Simpson v. WVOIC, 223 W.Va. 495, 678
S.E.2d 1 (2009). Finally, the Office of Judges found that Dr. Mukkamala’s evaluation was
reliable and unrefuted. Thus, it held that Mr. Whittington was entitled to a 13% 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 in its June 1, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review.
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: February 4, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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