Kenneth Cole v. Cam Mining, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
KENNETH COLE, May 1, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-299 (JCN: 2019000028)

CAM MINING, LLC,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Kenneth Cole appeals the November 9, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent CAM Mining, LLC (“CAM”) filed
a timely response.1 Mr. Cole filed a timely reply. The issue on appeal is whether the Board
erred in affirming the claim administrator’s order granting Mr. Cole a 3% permanent partial
disability (“PPD”) award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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.

Mr. Cole, while employed by CAM, suffered a heat stroke and an alleged hip injury
when he became overheated while operating equipment on February 20, 2018. Mr. Cole
was admitted to the hospital the same day and was discharged two days later on February
22, 2018. Mr. Cole was diagnosed with heat exhaustion, right hip pain, and nausea.

On February 27, 2018, Mr. Cole was seen by Laura Ashby-Jones, D.O. Dr. Ashby-
Jones diagnosed Mr. Cole with heat exhaustion, heat syncope, heat stroke, confusion,
unspecified intellectual disabilities, headache, dizziness, nausea, orthostatic hypotension,
muscle weakness, and right hip pain. Ashby-Jones also wrote Mr. Cole a work excuse
pending a neurological evaluation scheduled for March 1, 2018.

Mr. Cole was examined by Sujata R. Gutti, M.D., a neurologist, on March 1, 2018.
Mr. Cole reported that since his injury he had been confused, forgetful, dizzy, unable to

1
Mr. Cole is represented by Samuel F. Hanna, Esq. CAM is represented by Sean
Harter, Esq.

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concentrate, and unable to keep his balance. Dr. Gutti diagnosed Mr. Cole with acute
confusion state at work following exposure to heat suggestive of heat stroke, heat
exhaustion, and dizziness. Dr. Gutti recommended an MRI of Mr. Cole’s brain and an EEG.

On May 24, 2018, Mr. Cole underwent an independent medical examination
(“IME”) performed by Marsha Bailey, M.D. Mr. Cole reported that he had suffered
headaches, dizziness, and short-term memory loss. Dr. Bailey diagnosed Mr. Cole with
heat exhaustion but opined that he had not suffered heat stroke. Dr. Bailey opined that Mr.
Cole had reached maximum medical improvement (“MMI”) and she found no whole
person impairment (“WPI”) related to Mr. Cole’s compensable injury.2

Mr. Cole followed up with Dr. Gutti on June 27, 2018. Mr. Cole reported that he
was doing much better, and his headaches and dizziness had improved. Dr. Gutti indicated
that Mr. Cole was released to return to work with no restrictions.

On August 13, 2019, Mr. Cole was seen by Anteneh M. Feyissa, M.D. at the Mayo
Clinic in Jacksonville, Florida. Mr. Cole reported that he suffered from daily headaches,
dizziness, weakness, cramps, droopiness in the left eye, memory loss, and mood
swings/depression. Dr. Feyissa diagnosed Mr. Cole with heat stroke with continued
somatic symptoms including confusion, memory loss, headache, dizziness, weakness, and
fatigue. Dr. Feyissa recommended a brain MRI, an awake and asleep EEG, blood testing,
and referral to a psychologist or psychiatrist.

Mr. Cole underwent an IME performed by Syam Stoll, M.D., on March 24, 2021.
Mr. Cole reported that he suffered from chronic headaches, heat intolerance, and memory
loss. Dr. Stoll opined that Mr. Cole was at MMI. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993)
(“Guides”), Dr. Stoll determined that Mr. Cole had a 3% whole person impairment (“WPI”)
related to the compensable injury pursuant to page 9 of the Guides.

On May 25, 2021, the claim administrator issued an order granting Mr. Cole a 3%
PPD award based on Dr. Stoll’s report. Mr. Cole protested this order.

Mr. Cole was seen by Bruce Guberman, M.D., for an IME on October 28, 2021. Mr.
Cole reported that he suffered from chronic headaches, weakness, dizziness,
lightheadedness, disorientation, intermittent balance problems, fatigue, heat sensitivity,
sleeping problem, drooping of his left eye, and issues with memory, concentration, and
understanding. Using the Guides, Dr. Guberman found that Mr. Cole had a 3% impairment
for chronic headaches requiring ongoing medication, a 3% impairment for disequilibrium,

2
It appears that at some point the claim administrator held this claim compensable
for heat stroke; however, that order was not included in the record.
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and a 7% impairment for loss of concentration and memory. Dr. Guberman combined these
values to find a 13% WPI related to Mr. Cole’s compensable injury.

On February 10, 2022, Mr. Cole underwent an IME performed by Prasadarao
Mukkamala, M.D. Dr. Mukkamala diagnosed Mr. Cole with heat stroke. Dr. Mukkamala
opined that Mr. Cole was at MMI and had 0% impairment related to his compensable
injury.

The Board issued an order dated November 9, 2022, affirming the claim
administrator’s order dated May 25, 2021, which granted Mr. Cole a 3% PPD award. The
Board found that Mr. Cole had not established that he suffered a greater than 3%
impairment. Mr. Cole 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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, Mr. Cole argues that the Board erred in finding that the report of Dr.
Guberman was not reliable or persuasive because Dr. Guberman found impairment for
headaches, disequilibrium, and difficulties with concentration and memory, which were
found by other physicians. Mr. Cole argues that although the other physicians did not offer
impairment ratings for those conditions, they were reported by other physicians.

We disagree. The Board found that Dr. Guberman’s report was an outlier and was
not reliable or persuasive because his impairment rating was significantly higher than the
other physicians’ reports and he found impairment for conditions not rated by other
physicians. The Board further found that the reports of Drs. Stoll, Mukkamala, and Bailey

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were equally reliable and persuasive, thus, the Board adopted the findings of Dr. Stoll as
they were the most consistent with Mr. Cole’s position as required by West Virginia Code
§ 23-4-1g (2003).

West Virginia Code § 23-4-1g(a) provides:

For all awards made on or after the effective date of the amendment and
reenactment of this section during the year two thousand three, resolution of
any issue raised in administering this chapter shall be based on a weighing
of all evidence pertaining to the issue and a finding that a preponderance of
the evidence supports the chosen manner of resolution. The process of
weighing evidence shall include, but not be limited to, an assessment of the
relevance, credibility, materiality and reliability that the evidence possesses
in the context of the issue presented. Under no circumstances will an issue
be resolved by allowing certain evidence to be dispositive simply because it
is reliable and is most favorable to a party's interests or position. If, 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.

After review, we conclude that the Board was not clearly wrong in finding that Dr.
Guberman’s report was not reliable due to the significant differences in findings of
impairment when compared to the reports of all other physicians. Further, the Board was
not clearly wrong in adopting the findings of Dr. Stoll.

Finding no error in the Board’s November 9, 2022, order, we affirm.

Affirmed.

ISSUED: May 1, 2023

CONCURRED IN BY:

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

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