Donald Smith, II v. Marshall County Coal Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
DONALD SMITH, II, December 6, 2024
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-236 (JCN: 2023001949)

MARSHALL COUNTY COAL RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Donald Smith, II, appeals the May 10, 2024, order of the Workers’
Compensation Board of Review (“Board”). Respondent Marshall County Coal Resources,
Inc., (“MCCR”) filed a timely response.1 Mr. Smith filed a reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which granted Mr.
Smith a 1% permanent partial disability (“PPD”) award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On June 25, 2022, Mr. Smith was seen at the Wetzel County Hospital emergency
room with complaints of right shoulder pain. Mr. Smith indicated that he was carrying a
container of hydraulic fluid at work when he felt a pop in his right shoulder, and he
developed pain in his right shoulder following the incident. X-rays of the right shoulder,
performed on the same day, revealed no evidence of fracture. Mr. Smith was diagnosed
with a right shoulder strain.

Mr. Smith filed an Employees’ and Physicians' Report of Occupational Injury or
Disease dated June 25, 2022, indicating that he injured his right arm and shoulder while
restacking five gallons of oil on a skid. The physician’s portion of the report was completed
by a medical provider at Wetzel County Hospital on the day of the injury and indicated that
Mr. Smith had sustained an occupational injury resulting in a right shoulder strain. The

1
Mr. Smith is represented by Sandra K. Law, Esq. MCCR is represented by Aimee
M. Stern, Esq.

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claim administrator issued an order dated July 25, 2022, holding the claim compensable
for a sprain of the right shoulder joint.

On July 18, 2022, Mr. Smith was seen by Tracy Myers, APRN, for complaints of
right shoulder pain and weakness. APRN Myers recommended physical therapy and a right
shoulder MRI to rule out a tear. Mr. Smith underwent an MRI of his right shoulder on
August 7, 2022. The MRI revealed a full-thickness tear of the supraspinatus tendon with
mild muscular atrophy, tendinopathy of the anterior infraspinatus and upper subscapularis,
suspected tendinopathy of the proximal long head of the biceps, and mild joint space
narrowing and chronic posterior labral degeneration.

Mr. Smith was seen by Brook Morgan, PA-C, at Parkersburg Orthopedics on August
24, 2022. Mr. Smith reported no issues with his right shoulder prior to the compensable
injury. Based on the August 7, 2022, MRI, PA-C Morgan assessed Mr. Smith with a right
rotator cuff tear and recommended a right shoulder arthroscopy with subacromial
decompression and mini open rotator cuff repair. Mr. Smith was placed off work, and by
letter dated August 24, 2022, the provider requested authorization for surgery. Ronald
Fadel, M.D., drafted a utilization review report dated August 27, 2022, recommending that
the request for arthroscopic right shoulder surgery with subacromial decompression and
mini open rotator cuff repair be authorized in the claim.

On October 17, 2022, Mr. Smith underwent a right shoulder arthroscopy with
subacromial decompression and mini open rotator cuff repair performed by George
Herriott, M.D. Dr. Herriott diagnosed Mr. Smith with a traumatic complete tear of the right
rotator cuff and indicated that Mr. Smith was temporarily and totally disabled from October
17, 2022, through January 17, 2023. Mr. Smith was seen by PA-C Morgan for post-
operative follow-up on October 26, 2022. Mr. Smith reported that he was doing well and
no longer taking pain medications. PA-C Morgan recommended physical therapy. Mr.
Smith underwent physical therapy from November 1, 2022, through February 16, 2023.

Mr. Smith was seen by Dr. Herriott for a post-operative follow-up on November 22,
2022. Dr. Herriott recommended continued physical therapy. In a return-to-work slip dated
November 23, 2022, Dr. Herriott indicated that Mr. Smith was to remain off work until
January 9, 2023. On December 22, 2022, Mr. Smith was seen by Dr. Herriott for a follow-
up. Mr. Smith developed an infection following his right shoulder arthroscopy which
required irrigation and debridement on December 11, 2022. Mr. Smith reported that his
range of motion was steadily improving, and he did not have any real discomfort in the
right shoulder.

On January 5, 2023, Mr. Smith followed up with Dr. Herriott for a wound check.
Mr. Smith stated that his right shoulder was feeling better, and he was now able to actively
raise his right arm above his head without significant discomfort. He also reported
improved strength in the right shoulder. Dr. Herriott instructed Mr. Smith to continue with

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physical therapy and advance his activities as tolerated. Mr. Smith was seen by Patrick
Corbitt, PA-C, and Dr. Herriott for a follow-up on January 26, 2023. Mr. Smith reported
increased right shoulder aching, but he denied any increased redness, swelling, warmth or
pain along the right shoulder incision site. Physical examination revealed full active and
passive range of motion of the right shoulder and no discernible weakness.

Mr. Smith followed up with Dr. Herriott on February 21, 2023, and reported very
little discomfort in the right shoulder. Mr. Smith stated that he still had some weakness in
the right shoulder, and he did not feel that he was ready to return to his previous job. A
physical examination of the right shoulder revealed full active range of motion for flexion
abduction and external rotation to about 60 degrees with the arms at the side, but internal
rotation was somewhat limited. Mr. Smith was instructed to transition to a home exercise
program.

On February 22, 2023, Dr. Herriott completed a Physical Work Capabilities form
and an Attending Physician’s Report. Dr. Herriott indicated that Mr. Smith had not reached
maximum medical improvement (“MMI”) and would need to remain off work until after
his next follow-up appointment. Dr. Herriott stated that Mr. Smith was temporarily and
totally disabled from February 21, 2023, through May 8, 2023.

Prasadarao Mukkamala, M.D., performed a medical evaluation of Mr. Smith on
April 10, 2023. Dr. Mukkamala concluded that Mr. Smith’s compensable right shoulder
injury was at MMI. Using the American Medical Association’s Guides to the Evaluation
of Permanent Impairment, (4th ed. 1993), (“Guides”), Dr. Mukkamala found Mr. Smith
with 1% upper extremity impairment for reduced right shoulder flexion and 1% upper
extremity impairment for right shoulder abduction. According to Dr. Mukkamala, 2%
upper extremity impairment converts to a 1% whole person impairment (“WPI”), which he
recommended for the compensable right shoulder injury.

On May 2, 2023, Mr. Smith was seen by Dr. Herriott and reported that he was doing
well. Mr. Smith stated that he did not feel that he had any significant functional limitations
or weakness in the right shoulder. Physical examination of the right shoulder revealed full
active range of motion in all planes. Strength testing showed 5/5 strength in abduction,
flexion, internal rotation, and external rotation. There was no tenderness on palpation of
the right shoulder. Dr. Herriott released Mr. Smith to return to work without restrictions on
May 8, 2023.

Bruce Guberman, M.D., evaluated Mr. Smith on July 5, 2023. Dr. Guberman noted
that Mr. Smith’s right shoulder symptoms had improved but had not resolved. Specifically,
Dr. Guberman noted that Mr. Smith continued to have persistent tenderness, pain, and
range of motion abnormalities in the right shoulder. Dr. Guberman found Mr. Smith at
MMI. Using the Guides, Dr. Guberman found Mr. Smith with 3% upper extremity
impairment for reduced flexion of the right shoulder, 2% upper extremity impairment for

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reduced abduction of the right shoulder, and 1% upper extremity impairment for reduced
internal rotation of the right shoulder. According to Dr. Guberman, the claimant’s upper
extremity impairments converted to 4% WPI for the compensable right shoulder injury.

On January 5, 2023, the Board affirmed the claim administrator’s order granting
Mr. Smith a 1% PPD award for his compensable right shoulder injury. The Board found
that Mr. Smith failed to show by a preponderance of evidence that he has more than 1%
whole person impairment related to the compensable injury. Mr. Smith now appeals the
Board’s order.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:

(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, Mr. Smith argues that both Dr. Mukkamala and Dr. Guberman followed
the Guides, and their findings differed only by slight differences in range of motion
readings. Mr. Smith further argues that the Board did not make any finding that Dr.
Guberman’s evaluation was unreliable or had not followed the Guides, thus, the Board
should have found that the reports were of equal weight and adopted Dr. Guberman’s
findings under West Virginia Code § 23-4-1g (2003).2 We disagree.

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West Virginia Code § 23-4-1g provides, in relevant part, “[i]f, after weighing all
of the evidence regarding an issue in which a claimant has an interest, there is a finding
that an equal amount of evidentiary weight exists favoring conflicting matters for
resolution, the resolution that is most consistent with the claimant’s position will be
adopted.”
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The Board found that the weight of the evidence supports Dr. Mukkamala and the
claim administrator’s finding that Mr. Smith has 1% whole person impairment related to
the compensable injury. The Board noted that Dr. Mukkamala’s range of motion findings
were consistent with those of Dr. Harriott, Mr. Smith’s treating orthopedic surgeon. Thus,
the Board found that Mr. Smith failed to show by a preponderance of evidence that he has
more than 1% whole person impairment related to the compensable injury.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Smith failed to show by a preponderance of evidence that he has more than 1% whole
person impairment related to the compensable injury. As the Supreme Court of Appeals of
West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’
standards of review are deferential ones which presume an agency’s actions are valid as
long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3,
In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of
review in mind, we cannot conclude that the Board was clearly wrong in finding that the
weight of the evidence supports Dr. Mukkamala’s findings.

Accordingly, we affirm the Board’s May 10, 2024, order.

Affirmed.

ISSUED: December 6, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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