Below v. Alpha Natural Resources, Inc., 080217 WVSC, 16-0907

Docket Nº:16-0907
Party Name:DAVID MILLS, Claimant Below, Petitioner v. ALPHA NATURAL RESOURCES, INC., Employer Below, Respondent
Judge Panel:CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J. Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker
Case Date:August 02, 2017
Court:Supreme Court of Appeals of West Virginia

DAVID MILLS, Claimant Below, Petitioner


ALPHA NATURAL RESOURCES, INC., Employer Below, Respondent

No. 16-0907

Supreme Court of West Virginia

August 2, 2017

(BOR Appeal No. 2051141) (Claim No. 2013028109)


Petitioner David Mills, by John H. Shumate, Jr, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Alpha Natural Resources, by Timothy E. Huffman, its attorney, filed a timely response.

The issue on appeal is the appropriate amount of permanent partial disability related to the compensable injury. The claims administrator found that Mr. Mills was entitled to a 7% permanent partial disability on October 13, 2014. The Office of Judges affirmed the claims administrator's decision on February 12, 2016. The Board of Review affirmed the Order of the Office of Judges on August 31, 2016. 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. Mills, a shuttle car operator for Alpha Natural Resources, Inc., injured his back and right leg on March 12, 2013, while loading timbers into a scoop. Mr. Mills stated that he got his right foot caught in between the logs and started to fall. He twisted his right knee and lower back in the process. Mr. Mills reported hearing or feeling a pop when he twisted his knee. Upon examination, the right knee was noted to be swollen and painful to palpation. Mr. Mills had some decreased range of motion as well. The lumbar spine was tender to palpation. An x-ray of the right knee was normal, but an x-ray of the lumbar spine revealed degenerative changes from the L3 to L5-S1 level with narrowing disc spaces and endplate spurring. There was no fracture or spondylolisthesis noted. Mr. Mills was diagnosed with a lumbar sprain/strain and knee sprain.

On March 29, 2013, the claim was approved for sprain of knee/leg, sprain lumbar region, and overexertion and strenuous movements. An MRI performed the same day revealed Grade 2 chondromalacia of the patella, moderate size joint effusion, cartilage erosion and osseous erosion far posterior aspect of the lateral femoral condyle, subchondral cysts within the medial tibial plateau, delicate tear posterior horn medial meniscus, mild meniscocapsular separation, inflammation of the MCL which is on top of a chronic injury, and tricompartmental osteoarthritis. The findings of the cartilage revealed increased intensity...

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