Blackhawk Mining, LLC v. Bobby Taylor ( 2022 )

FILED
September 19, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
BLACKHAWK MINING, LLC,
Employer Below, Petitioner
vs.) No. 21-0406 (BOR Appeal No. 2055895)
(Claim No. 2019019469)
BOBBY TAYLOR,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Blackhawk Mining, LLC, by Counsel Billy R. Shelton, appeals the decision of
the West Virginia Workers’ Compensation Board of Review (“Board of Review”). Bobby
Taylor, by Counsel Robert H. Carlton, filed a timely response.
The issue on appeal is the amount of permanent partial disability in the claim. The claims
administrator granted Mr. Taylor a 4% permanent partial disability award on June 11, 2019. On
October 30, 2020, the Workers’ Compensation Office of Judges (“Office of Judges”) reversed
the claims administrator’s decision and granted a 10% permanent partial disability award. This
appeal arises from the Board of Review’s Order dated April 22, 2021, in which the Board
affirmed the Order of the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
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(e) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or the Office of Judges that was entered on the
same issue in the same claim, the decision of the board may be reversed or
modified by the Supreme Court of Appeals only if the decision is in clear
violation of constitutional or statutory provisions, is clearly the result of erroneous
conclusions of law, or is so clearly wrong based upon the evidentiary record that
even when all inferences are resolved in favor of the board’s findings, reasoning,
and conclusions, there is insufficient support to sustain the decision. The court
may not conduct a de novo reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
On February 28, 2019, Mr. Taylor, a shuttle car operator, was working with a group of
miners when he stepped backward off a feeder and twisted his ankle. He was unable to put
pressure on it, and EMTs were called. He was transported to Logan Regional Medical Center
where x-rays of his ankle, foot, and leg were normal. A staff physician completed the physician’s
section of the Report of Injury and determined that Mr. Taylor sustained an occupational injury
of a sprain of the right ankle. He was released the same day with instructions to follow-up with
his doctor if the symptoms continued.
Mr. Taylor followed-up with Daniel Wright, DPM, on March 1, 2019, who placed him
off work until April 2, 2019. He was treated for a sprain of the calcaneofibular ligament of the
right ankle and placed in a short-leg cast. After two weeks, he was transferred to a boot and
placed in a brace. Dr. Wright kept Mr. Taylor off work and suggested physical therapy. On April
29, 2019, he was given an MRI, which revealed a previous injury in the anterior talofibular
ligaments but no acute process. The MRI was interpreted to show that the calcaneofibular was
intact, and the remaining ligaments were intact. There was a finding that the anterior talo-fibular
ligament (“ATFL”) was thickened. Subsequently, Dr. Wright released Mr. Taylor to return to
work with no restrictions on May 14, 2019.
Mr. Taylor underwent an Independent Medical Evaluation with Prasadarao B.
Mukkamala, M.D., on July 1, 2019. After reviewing past medical records and a physical
examination, Dr. Mukkamala diagnosed a sprained right ankle. It was determined that Mr.
Taylor reached maximum medical improvement for the compensable injury of February 28,
2019. Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), Dr. Mukkamala found that Mr. Taylor qualifies under Table 42 for
3% whole person impairment for loss of range of motion at the right ankle. He also found 1%
whole person impairment for loss of range of motion at the hind foot according to Table 43 of
the Guides. Dr. Mukkamala concluded that Mr. Taylor has 4% whole person impairment
resulting from the compensable injury of February 28, 2019. On July 11, 2019, the claims
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administrator granted Mr. Taylor a 4% permanent partial disability award based upon the
evaluation of Dr. Mukkamala.
After protesting the claims administrator’s decision, Mr. Taylor was evaluated for an
Independent Medical Evaluation by Ramanathan Padmanaban, M.D., on October 17, 2019. Mr.
Taylor reported that he was still experiencing swelling in his right foot and had no feeling in his
right foot. After reviewing the medical record and conducting an examination, Dr. Padmanaban
diagnosed a sprained right ankle and right foot. Dr. Padmanaban noted that the MRI revealed a
thickening of the ATFL. Mr. Taylor’s ATF and calcaneus ligaments were tender upon
examination. He was found to be at maximum medical improvement. Dr. Padmanaban found 3%
whole person impairment for plantar flexion of 20 degrees and dorsiflexion of 5 degrees at the
ankle. For Mr. Taylor’s inversion and eversion issue, Dr. Padmanaban found 2% impairment.
For his hind foot vagus, 5% whole person impairment was recommended. Dr. Padmanaban
concluded that Mr. Taylor has 10% combined whole person impairment for the right ankle
resulting from the compensable injury dated February 28, 2019.
Dr. Mukkamala re-evaluated Mr. Taylor on March 5, 2020. Dr. Mukkamala again
recommended 4% whole person impairment under the Guides. He insisted the difference in his
and Dr. Padmanaban’s impairment rating was in relation to the range of motion of the hind foot
and the observance of any hindfoot deformity. Dr. Mukkamala did not agree with Dr.
Padmanaban’s assessment of a moderate limitation of motion because Dr. Padmanaban only
observed a mild degree of range of motion impairment. Dr. Mukkamala also stated that there was
no valgus deformity in the claim, but Dr. Padmanaban recommended 5% impairment for a
finding of 10-degree valgus deformity of the hindfoot.
In a Final Decision dated October 30, 2020, the Office of Judges concluded that Mr.
Taylor has shown that he is entitled to a greater permanent partial disability award from the
report of Dr. Padmanaban, dated October 17, 2019. It was determined that the finding of 10%
whole person impairment made by Dr. Padmanaban is the most persuasive medical opinion for
calculating permanent impairment. The Office of Judges also noted that Mr. Taylor provided
credible evidence at his deposition that he had never had problems with his right ankle. The
Office of Judges reversed the claims administrator’s Order of July 11, 2019, and granted Mr.
Taylor a 10% permanent partial disability award, which is 6% above the amount granted by the
claims administrator. The Board of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its decision on April 22, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The Office of Judges found from a preponderance of the
evidence that Mr. Taylor has 10% permanent partial disability from his compensable injury
based upon the conclusions of Dr. Padmanaban, who found that Mr. Taylor suffered more
profound injuries than identified by Dr. Mukkamala. A preponderance of the evidence supports
the additional permanent partial disability award in the claim.
Affirmed.
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ISSUED: September 19, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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