James P. Bailey v. Alpha Natural Resourcs ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS December 3, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
JAMES P. BAILEY, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-1067 (BOR Appeal No. 2048385)
(Claim No. 2012009867)
ALPHA NATURAL RESOURCES, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner James P. Bailey, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Alpha Natural Resources, Inc., by
Robert J. Busse, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated September 23, 2013, in
which the Board affirmed a May 13, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 27, 2012,
decision which granted no 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. Bailey, a coal miner, was injured on September 15, 2011, while working
underground when a large piece of rock fell and struck his head. He was treated that day at
Raleigh General Hospital where he reported neck pain and stiffness as well as a headache.
Cervical spine x-rays were normal and he was diagnosed with a contusion and closed head
injury. The claim was held compensable for contusion of the face, scalp, and neck.
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Three independent medical evaluations were performed in order to determine the amount
of permanent impairment Mr. Bailey sustained as a result of his compensable injury. The first
independent medical evaluation was performed on December 13, 2011, by Bruce Guberman,
M.D. Mr. Bailey reported that his neck pain and stiffness resolved entirely within two to three
weeks after the injury, and he had no pain or stiffness in his head or neck at that time. Dr.
Guberman diagnosed resolved contusion of the head and neck. He noted that there were no
cervical range of motion abnormalities and therefore assessed 0% cervical spine impairment.
A second independent medical evaluation was performed by H.R. Fleschner, D.C.C.R.P.,
on July 26, 2012. Dr. Fleschner assessed 9% whole person impairment for the cervical spine,
placed Mr. Bailey in Cervical Category II of West Virginia Code of State Rules § 85-20-E
(2006), and adjusted the rating to 8% impairment. Finally, Prasadarao Mukkamala, M.D.,
performed an independent medical evaluation on September 13, 2012. He noted that Mr. Bailey
reported pain in his back and shoulder but none in his neck. Cervical range of motion was
normal, and Dr. Mukkamala assessed 0% cervical spine impairment.
The claims administrator granted Mr. Bailey no permanent partial disability award on
January 27, 2012. The Office of Judges affirmed the decision in its May 13, 2013, Order. It
found that the claim has only been held compensable for contusion of the face and scalp. Drs.
Guberman and Mukkamala both found no range of motion abnormalities in the cervical spine. In
contrast, Dr. Fleschner found 8% impairment. The Office of Judges found that Dr. Fleschner did
not include a rating from Table 75 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) in his assessment and did not give an
explanation as to why it was omitted. His report was therefore determined to be less reliable than
the others of record. The Office of Judges further noted that Dr. Guberman examined Mr. Bailey
seven months prior to Dr. Fleschner and Dr. Mukkamala examined him two months after Dr.
Fleschner and neither physician found cervical impairment. Additionally, Mr. Bailey reported to
Dr. Guberman that his cervical pain had completely resolved. The Office of Judges determined
that even if Dr. Fleschner’s assessment was correct at the time it was performed, he must have
recorded the results of a temporary condition as the symptoms were not present two months later.
The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 23, 2013, decision. On appeal, Mr. Bailey argues,
per the report of Dr. Fleschner, that a preponderance of the evidence establishes that he is
entitled to an 8% permanent partial disability award. Alpha Natural Resources, Inc., asserts that
Dr. Fleschner’s report was not reliable and was not indicative of permanent impairment. After
review, this Court agrees with the reasoning of the Office of Judges and the conclusions of the
Board of Review. The evidentiary record indicates that Mr. Bailey sustained no permanent
impairment to his cervical spine as a result of his compensable injury.
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.
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Affirmed.
ISSUED: December 3, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Brent D. Benjamin, disqualified
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