Below v. Raleigh Cnty. Solid Waste Auth.

• Docket Number: 24-231
• Decision Date: 14 January 2025
• Parties: Robert Workman, Claimant Below, Petitioner v. Raleigh County Solid Waste Authority, Employer Below, Respondent
• Court: West Virginia Supreme Court

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Robert Workman, Claimant Below, Petitioner v. Raleigh County Solid Waste Authority, Employer Below, Respondent

No. 24-231

Supreme Court of Appeals of West Virginia

January 14, 2025

(JCN 2021025682)(ICANo. 23-ICA-461)

MEMORANDUM DECISION

PetitionerRobert Workman appeals the February 27, 2024, memorandum decision of the Intermediate Court of Appeals of West Virginia("ICA").RespondentRaleigh County Solid Waste Authority filed a timely response.^[1] The issue on appeal is whether the ICA erred in affirming the October 3 2023, decision of the West Virginia Workers' Compensation Board of Review, which affirmed the claim administrator's order granting Mr. Workman a 6% permanent partial disability award.Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the Board of Review's decision is appropriate.SeeW.Va. R. App. P. 21.

On June 23, 2021, Mr. Workman sustained an occupational injury when as he was trying to remove a plastic bag from his work truck slipped and fell several feet, and was knocked unconscious.By order dated August 6, 2021, the claim administrator held the claim compensable for a concussion, an abrasion of the scalp, and a contusion of the right shoulder.The record indicates that Mr. Workman has a history of concussions, falls, and problems with vertigo/equilibrium pre-dating the compensable injury.^[2] Mr. Workman was evaluated by four physicians in order to determine his impairment related to his compensable injury.On April 28, 2022, Prasadarao Mukkamala, M.D., using the American Medical Association's Guides to the Evaluation of Permanent Impairment(4th ed. 1993)("AMA Guides"), recommended 5% whole person impairment for vertigo remaining from the concussion; 0% for the abrasion of the scalp; and 1% for the contusion of the shoulder.In total, Dr. Mukkamala found 6% whole person impairment.Based upon Dr. Mukkamala's recommendation, the claim administrator granted Mr. Workman a 6% permanent partial disability award on June 6, 2022.Mr. Workman protested the claims administrator's order.

In support of his protest, Mr. Workman underwent an independent medical evaluation with Bruce Guberman, M.D., on October 20, 2022.Using the AMA Guides, Dr. Guberman found 9% impairment for dizziness and disequilibrium, as he opined that Mr. Workman had limitations in activities of daily living with non-hazardous activities.Dr. Guberman also found 5% impairment for the right shoulder contusion for reduced range of motion.However, Dr. Guberman did not apportion for either equilibrium or the shoulder contusion injury and, his final recommendation was 14% whole person impairment, which represented an additional 8% award.

Subsequently, on December 16, 2022, Michael Kominsky, D.C., performed an independent medical evaluation of Mr. Workman and provided an impairment rating that was identical to Dr. Guberman's rating.Dr. Kominsky diagnosed a myriad of conditions including concussion with loss of consciousness, scalp abrasion, encephalopathy, equilibrium dysfunction, right shoulder contusion, head injury, vertigo, dizziness, and memory loss.Dr. Kominsky found 5% whole person impairment in the right shoulder for reduced range of motion, and he found 9% whole person impairment for disequilibrium, for a total of 14% whole person impairment as a result of the compensable injury.

Most recently, Mr. Workman was evaluated by Syam Stoll, M.D., on February 9, 2023.Using the AMA Guides, Dr. Stoll assessed 9% whole person impairment; however, Dr. Stoll apportioned the entire 9% to Mr. Workman's extensive prior history of concussions, head injuries, cognitive issues, and falls.Regarding the right shoulder contusion, Dr. Stoll assessed 7% whole person impairment.Dr. Stoll opined that such a rating was significant and not consistent with a contusion injury.Dr. Stoll stated that, rather, the impairment was likely due to the natural progression of Mr. Workman's prior injuries.As such, Dr. Stoll apportioned 4% and attributed 3% to the compensable injury.In all, Dr. Stoll's final recommendation was 3% whole person impairment.

By order dated October 3, 2023, the Board of Review affirmed the claim administrator's order granting Mr. Workman a 6% permanent partial disability award in accordance with Dr. Mukkamala's recommendation.It was determined that the medical records established a reasonable basis to apportion some of Mr. Workman's concussion-related symptoms to his prior head injuries.The Board of Review noted that Mr. Workman had a history of prior concussions, traumatic brain injuries, multiple falls due to losing his balance, and vertigo.Because neither Dr. Guberman nor Dr. Kominsky apportioned any of the impairment for Mr. Workman's concussion-related symptoms, the Board of Review found their reports to be unreliable.The Board of Review also noted that Dr. Mukkamala "attributed 5% impairment to [Mr. Workman's] compensable head injury while Dr. Stoll apportioned all of the 9% impairment" and, ultimately, affirmed the claim administrator's order granting Mr. Workman a 6% PPD award in accordance with Dr. Mukkamala's recommendation.

In a memorandum decision dated February 27, 2024, the ICA affirmed the Board of Review's decision to award Mr. Workman 6% PPD.SeeWorkman v. Raleigh County Solid Waste Authority, No. 23-ICA-461, 2024 WL 1590461(W.Va. Ct App.Feb. 27, 2024)...