Perry A. Prunesti v. United Coal Co. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
September 30, 2016
PERRY A. PRUNESTI, RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Claimant Below, Petitioner OF WEST VIRGINIA
vs.) No. 15-0895 (BOR Appeal No. 2050344)
(Claim No. 2011030107)
UNITED COAL COMPANY, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Perry A. Prunesti, by John Shumate, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. United Coal Company, LLC, by
Timothy Huffman, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated September 2, 2015, in
which the Board affirmed a March 24, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 14,
2013, decision granting Mr. Prunesti a 4% permanent partial disability award for bilateral carpal
tunnel syndrome. 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. Prunesti filed an application for workers’ compensation benefits on April 18, 2011,
alleging that he developed bilateral carpal tunnel syndrome in the course of and resulting from
his employment and his claim was held compensable for bilateral carpal tunnel syndrome on July
8, 2011. He underwent a bilateral carpal tunnel release on July 24, 2013. Joseph Grady, M.D.,
performed an independent medical evaluation on August 28, 2013, and authored a report
memorializing his findings on the same date. Using the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (4th ed. 1993), he opined that Mr. Prunesti sustained
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a 10% sensory deficit in each wrist, which equates to 2% whole person impairment per wrist, for
a total of 4% whole person impairment. He then applied West Virginia Code of State Rules § 85­
20-64.5 (2006) and, after determining that no further adjustment of his permanent impairment
recommendation was necessary, opined that Mr. Prunesti sustained a total of 4% whole person
impairment as a result of bilateral carpal tunnel syndrome, representing 2% per wrist. The claims
administrator granted Mr. Prunesti a 4% permanent partial disability award based upon Dr.
Grady’s evaluation on November 14, 2013.
Yogesh Chand, M.D., performed an independent medical evaluation on February 25,
2014, and authored a report memorializing his findings on the same date. He also utilized the
American Medical Association’s Guides to the Evaluation of Permanent Impairment and opined
that Mr. Prunesti sustained a 50% sensory deficit in each wrist, which equates to 11% whole
person impairment per wrist. He further opined that Mr. Prunesti sustained motor strength loss
equating to 14% whole person impairment in the right wrist and 12% whole person impairment
in the left wrist. Finally, Dr. Chand opined that Mr. Prunesti sustained 23% whole person
impairment as a result of carpal tunnel syndrome in the right wrist and 22% whole person
impairment as a result of carpal tunnel syndrome in the left wrist, for a total of 39% whole
person impairment. Dr. Chand issued an addendum report on May 5, 2014, in which he indicated
that he neglected to apply West Virginia Code of State Rules § 85-20 (2006) when initially
calculating the amount of Mr. Prunesti’s whole person impairment. After applying West Virginia
Code of State Rules § 85-20-64.5, he opined that Mr. Prunesti sustained 6% whole person
impairment per wrist as a result of bilateral carpal tunnel syndrome, for a total of 12% whole
person impairment.
Finally, Prasadarao Mukkamala, M.D., performed an independent medical evaluation on
August 5, 2014, and authored a report memorializing his findings on August 6, 2014. Using the
American Medical Association’s Guides to the Evaluation of Permanent Impairment, he opined
that Mr. Prunesti sustained a 10% sensory deficit in each wrist, which equates to 2% whole
person impairment per wrist, for a total of 4% whole person impairment.1
In its Order affirming the November 14, 2013, clams administrator’s decision, the Office
of Judges held that a preponderance of the evidence demonstrates that Mr. Prunesti sustained 4%
whole person impairment, representing 2% whole person impairment per wrist, as a result of
bilateral carpal tunnel syndrome.2 The Board of Review affirmed the decision of the Office of
Judges in its Order dated September 2, 2015. On appeal, Mr. Prunesti asserts that the evidence of
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Dr. Mukkamala did not specifically state that he applied West Virginia Code of State Rules §
85-20-64.5. However, an application of the Rule to his findings reveals that no further
adjustment of his recommendation pursuant to the Rule is necessary.
2
The Office of Judges initially affirmed the November 14, 2013, claims administrator’s decision
in an Order dated December 16, 2014. However, following a motion for reconsideration filed by
Mr. Prunesti in which he alleged that the Office of Judges failed to consider Dr. Chand’s May 5,
2014, addendum, the Office of Judges vacated its prior decision and granted Mr. Prunesti’s
motion for reconsideration on January 23, 2015.
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record demonstrates that he is entitled to a 12% permanent partial disability award, as was
recommended by Dr. Chand.
At the outset, we note that the Office of Judges engaged in a lengthy discussion regarding
its interpretation of West Virginia Code of State Rules § 85-20-64 (2006) and West Virginia
Code of State Rules § 85-20-65 (2006). The Board of Review declined to adopt the Office of
Judges’ discussion of this matter, as do we. We further note that the Office of Judges’ discussion
of the Rules, and its conclusions regarding their application, ultimately had no bearing on its
analysis of the merits of the instant appeal.
Turning to the Office of Judges’ analysis of the evidence of record, it found that Dr.
Chand’s conclusions regarding the amount of whole person impairment arising from Mr.
Prunesti’s bilateral carpal tunnel syndrome are uncorroborated by the remainder of the record.
Specifically, the Office of Judges noted that Dr. Chand found that Mr. Prunesti suffers from a far
greater sensory deficit when compared with the findings of Dr. Grady and Dr. Mukkamala.3 The
Office of Judges also noted that only Dr. Chand opined that Mr. Prunesti sustained a loss of
motor strength. Finally, the Office of Judges noted that Mr. Prunesti testified in a deposition on
February 27, 2014, that his symptoms have greatly improved following surgery, and further
noted that he has returned to work at full-duty. The Office of Judges then found that Dr. Chand’s
recommendation appears to be excessive given Mr. Prunesti’s own report of his current
condition. We agree with the conclusions of the Office of Judges, as affirmed by the Board of
Review.
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The Office of Judges erroneously found that Dr. Mukkamala did not assign an impairment
rating for a sensory deficit. Dr. Mukkamala’s report clearly indicates that he ascribed a 10%
sensory loss to each wrist, as did Dr. Grady.
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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: September 30, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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