Melissa Kimble v. UCB ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
MELISSA KIMBLE, June 11, 2014
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 11-1685 (BOR Appeal No. 2046018)
(Claim No. 2009074409)
UCB,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Melissa Kimble, by Edwin H. Pancake, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. UCB, by Lisa W. Hunter, its
attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated November 17, 2011, in
which the Board affirmed a May 11, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 10,
2009, decision granting an 8% permanent partial disability award for the lumbar spine. 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.
Ms. Kimble worked as a pharmaceutical sales representative for UCB when she was
injured in a motor vehicle accident. The claim was held compensable for lumbar and cervical
sprain/strain. Paul Bachwitt, M.D., and Prasadarao B. Mukkamala, M.D., concluded that Ms.
Kimble has been fully compensated for her cervical spine by her prior 10% permanent partial
disability award granted on May 11, 1999, and recommended no additional impairment for the
cervical spine. On June 15, 2010, Bruce Guberman, M.D., recommended a 5% permanent partial
disability award for the cervical spine. The claims administrator granted Ms. Kimble an 8%
permanent partial disability award for the lumbar spine and a 0% permanent partial disability
award for the cervical spine.
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The Office of Judges affirmed the claims administrator’s decision granting Ms. Kimble
an 8% permanent partial disability award for the lumbar spine and a 0% permanent partial
disability award for her cervical spine. On appeal, Ms. Kimble disagrees and asserts that Dr.
Guberman’s recommendation of a 5% permanent partial disability award for the cervical spine
should be granted because even though she underwent a prior neck surgery her impairment for
the instant injury should not go uncompensated. Ms. Kimble did not appeal the lumbar spine
award. UCB maintains that Ms. Kimble failed to submit medical evidence that she has more than
a 10% impairment of her cervical spine and thus, has been fully compensated by her prior 10%
permanent partial disability award for the cervical spine that was awarded by the claims
administrator’s decision dated May 11, 1999.
The Office of Judges concluded that Ms. Kimble has been fully compensated by her prior
10% permanent partial disability award for her earlier compensable cervical spine injury. Dr.
Bachwitt and Dr. Mukkamala applied the range of motion model and then West Virginia Code of
State Rules § 85-20 (2006). Both doctors opined that Ms. Kimble’s has an 8% impairment for
her cervical spine. Dr. Bachwitt and Dr. Mukkamala also concluded that Ms. Kimble has been
fully compensated for her cervical spine by her prior award of 10%. The Office of Judges relied
on Dr. Bachwitt’s and Dr. Mukkmala’s conclusions that the prior 10% permanent partial
disability award should be deducted after utilizing West Virginia Code of State Rules § 85-20,
and determined Ms. Kimble was fully compensated for the cervical spine because her 8%
impairment is less than her prior 10% permanent partial disability award. The Office of Judges
agreed with Dr. Mukkamala that Dr. Guberman erroneously calculated Ms. Kimble’s
impairment. The Office of Judges discredited Dr. Guberman’s conclusion because he improperly
apportioned the prior 10% permanent partial disability award. The Board of Review reached the
same reasoned conclusions in its decision of November 17, 2011. We agree 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: June 11, 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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