The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
SAMUEL J. COX, April 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-230 (JCN: 2019016979)
RALEIGH COUNTY BOARD OF EDUCATION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Samuel J. Cox appeals the October 11, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Raleigh County Board of
Education (“RCBOE”) filed a timely response.1 Petitioner did not file a reply. The issue on
appeal is whether the Board erred in affirming the claim administrator’s May 13, 2021,
order that granted Mr. Cox no 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.
Samuel J. Cox, a crew leader and welder for RCBOE, was injured on January 11,
2019, when he stepped out of a work truck, turned, and had immediate pain in his right
knee. He was evaluated at Doctor’s Immedicare and submitted a WC-1 form dated
February 6, 2019, which described an occupational injury in the form of a strain/sprain of
the right knee that did not aggravate a prior injury/disease. An x-ray of his knee taken
February 6, 2019, showed no acute fracture or dislocation, but there was a mild narrowing
of the medial compartment of the knee joint, after a prior ACL repair. A fragmented
anterior tibial tuberosity and loose joint bodies were also noted. The assessment was knee
joint pain and sprain of knee and Mr. Cox was referred to orthopedist Prakash R. Puranik,
M.D.
1
Petitioner is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq.
Respondent is represented by Jeffrey M. Carder, Esq.
1
Dr. Puranik had a previous relationship with Mr. Cox, as he had performed the ACL
repair on Mr. Cox’s right knee in 2007. Dr. Puranik later noted that although Mr. Cox had
surgery on that knee in 2007, “after that he was doing perfectly fine … Though his MRI
did show some arthritis again he never complained of any pain in that knee prior to this
injury since his surgery in 2007.” Dr. Puranik initially gave Mr. Cox an injection in his
knee in March 2019 and ordered an MRI after observing that Mr. Cox had full range of
motion in his knee, his cruciate ligaments were intact, and there was no effusion.
Approximately sixty days later, Dr. Puranik’s records dated May 13, 2019, noted that Mr.
Cox continued to complain that his knee was locking with certain movements, and Dr.
Puranik recommended an arthroscopy to investigate a possible loose body in the knee.
About another month later, Dr. Puranik’s notes dated June 19, 2019, show that Mr. Cox’s
symptoms continued with significant pain in his knee. By that time, Mr. Cox’s workers’
compensation claim had been denied, but Dr. Puranik was not sure why, and he continued
to diagnose a loose body and/or meniscal tear in the right knee unrelated to the prior surgery
of 2007. Mr. Cox protested the denial and his claim was eventually held compensable for
right knee sprain and loose body and/or meniscus tear by order of the Workers’
Compensation Office of Judges dated June 12, 2020.
On April 26, 2021, Joseph E. Grady, II, M.D., performed an independent medical
evaluation (“IME”) of Mr. Cox for a disability rating. Dr. Grady noted that he reviewed
records from Dr. Puranik, as well as other physicians who had evaluated Mr. Cox, Dr.
Zahir, Dr. Kropac, and Dr. Tabit, all of whom had recorded range of motion evaluations.
Dr. Grady also physically examined Mr. Cox and found that his range of motion was the
same in both of his knees at 130 degrees, with no crepitus, instability, laxity, or joint
effusion in either knee. Therefore, he found no ratable criteria in the knee from the 2019
injury, and no need to apportion for the preexisting arthritis in the knee and no need to
make any adjustments under Rule 20. Accordingly, Dr. Grady found a 0% whole person
impairment for Mr. Cox. On that basis, the claim administrator notified Mr. Cox on May
13, 2021, that his PPD award was 0%. Mr. Cox protested.
On August 25, 2021, Mr. Cox was seen for an IME by chiropractor Michael
Kominsky, D.C., who found only 109 degrees of flexion in the right knee, noting that Mr.
Cox had progressive loss of range of motion since his 2019 injury. Dr. Kominsky found
that this limitation qualified Mr. Cox for a mild category of 4% whole person impairment
for loss of flexion and a mild laxity of the ACL for another 3% whole person impairment,
for a combined 7% whole person impairment, which he believed was solely attributable to
the January 11, 2019, injury. Dr. Kominsky did not apportion the impairment because he
believed the previous ACL repair in 2007 had good results and there was no ongoing
symptomatology, per Dr. Puranik’s notes.
On October 15, 2021, occupational medicine specialist Robert Walker, M.D.,
performed another IME on Mr. Cox. Dr. Walker noted that Mr. Cox reported chronic pain
and stiffness in his right knee. Dr. Walker observed only 100 degrees of flexion in that
2
knee, and extension of fourteen degrees less than neutral. Dr. Walker opined that a flexion
contracture of fourteen degrees placed Mr. Cox in the “moderate” category of Table 41 of
the AMA Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) (“Guides”),
assigning a 20% lower extremity impairment. Dr. Walker also found a 3.5 cm greater thigh
circumference on the right thigh, which corresponded to a 10% lower extremity impairment
for atrophy, using Table 37 of the Guides. Combining those values, he found a 28% lower
extremity impairment, which converted to an 11% whole person impairment. Dr. Walker
apportioned 3% of that impairment to preexisting impairment, as his May 5, 2019, MRI
showed both recent and chronic changes. His evaluation resulted in 8% whole person
impairment for the January 11, 2019, work injury.
On February 1, 2022, physiatrist Prasadarao B. Mukkamala, M.D., performed an
IME on behalf of the employer. Dr. Mukkamala reviewed the IME reports of the previous
providers and opined that Dr. Kominsky and Dr. Walker used incorrect methods in
reaching their results, which he said lacked credibility. Dr. Mukkamala, like Dr. Grady,
found no permanent impairment and no ratable condition in Mr. Cox’s right knee as his
range of motion was normal with full extension and 120 degrees flexion upon examination.
Dr. Mukkamala also noted that Dr. Kropac found a full range of motion on July 30, 2020,
as did Dr. Zahir on January 19, 2020, and Dr. Tabit on February 3, 2021. Dr. Mukkamala
found Dr. Kominsky’s finding of laxity in Mr. Cox’s ACL to be unreliable as no other
clinician documented such a finding. He further found that Dr. Walker’s atrophy findings
were not reliable because Mr. Cox had very significant varicose veins in the lower
extremities that caused edema which varied from day to day, making any circumference
measurements unreliable. Dr. Mukkamala found no atrophy when he examined Mr. Cox
on February 1, 2022. He also disagreed with Dr. Walker’s calculations because Dr. Walker
combined the impairments for limitation of range of motion with the impairments of the
atrophy. Ultimately, Dr. Mukkamala concluded that Mr. Cox had no permanent impairment
resulting from the compensable work injury.
By order dated October 11, 2022, the Board affirmed the claim administrator’s May
13, 2021, order that granted Mr. Cox no PPD award, finding that the evidence established
that Mr. Cox had no permanent impairment as a result of his compensable injury. The
Board reviewed the reports from the IMEs conducted by Dr. Grady, Dr. Kominsky, Dr.
Walker, and Dr. Mukkamala. It found that the reports of Dr. Kominsky and Dr. Walker
were unreliable because both doctors combined impermissible lower extremity
impairments in contravention of the instructions provided by the Guides. Specifically, the
Board cited to an advisement in the Guides on page 3/78, that if an impairment is estimated
based on range of motion, it should not be combined with impairment from atrophy, as
noted by Dr. Mukkamala. The Board also pointed to page 3/75 of the Guides, which states
that between range of motion and diagnostic categories, only one method should be used
in general. As these reports were deemed unreliable, the Board found that the evidence
indicated that Mr. Cox had no greater whole person impairment than what was granted,
and affirmed the claim administrator’s order. It is from that order that Mr. Cox now appeals.
3
The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), 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, __ W. Va. __, __, 882 S.E.2d 916, 921 (Ct. App. 2022).
On appeal, Mr. Cox argues that the Board incorrectly determined that both Dr.
Kominsky’s and Dr. Walker’s reports were flawed because they combined impairment
based on range of motion and atrophy, citing the Guides page 3/75 which states that
between range of motion and diagnostic categories, only one method should be used “in
general.” Mr. Cox asserts that this presents two errors – first, Dr. Mukkamala’s report only
states that Dr. Walker incorrectly combined the range of motion and atrophy impairments.
According to Mr. Cox, Dr. Mukkamala did not criticize Dr. Kominsky for calculating his
rating in this manner, so the Board’s reasoning is facially wrong. Dr. Kominsky did not
combine range of motion and atrophy impairments. Dr. Mukkamala disagreed with Dr.
Kominsky’s clinical findings of flexion limitations and laxity, on the basis that other
clinicians found these values to be within normal limits. Therefore, Mr. Cox asserts that
this reasoning by the Board for disregarding a report should only apply to Dr. Walker’s
report, leaving no reason to disregard Dr. Kominsky’s report. Second, Mr. Cox asserts that
the use of the qualifier “in general” on page 3/75 of the Guides signals that there is no
absolute prohibition against combining those two values as Dr. Walker did. Mr. Cox
alleges that the Guides also permit an examiner to increase the impairment percentage if
the examiner determines that the estimate does not sufficiently reflect the severity of the
patient’s condition, as long as the examiner explains the reason for the increase in writing.
Mr. Cox claims that both Dr. Kominsky and Dr. Walker discussed the severity of his
physical limitations and the effect on his daily activities, including limitations in his ability
to do housework, walk, drive, bathe, and squat. He further argues that Dr. Kominsky clearly
4
stated that his range of motion and laxity impairments were due to the less than optimal
treatment he has received, and that should be sufficient to justify combining figures to more
accurately reflect his total impairment.
Finally, Mr. Cox argues that the Board disregarded the Supreme Court of Appeals
of West Virginia’s holding in Moore v. ICG Tygart Valley, LLC, that “[a] claimant’s
disability will be presumed to have resulted from the compensable injury if: (1) before the
injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following
the injury, the symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. . . .” Syl. Pt. 5, in part, Moore v. ICG Tygart Valley,
LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022).
Upon review, we disagree and find no error in the Board’s reasoning or conclusions.
The Board noted that it weighed all reliable, probative, and substantial evidence and
considered it in determining Mr. Cox’s PPD award but that in doing so, it was not required
to accept the opinion of any particular expert. The Board concluded that Dr. Walker’s and
Dr. Kominsky’s reports were unreliable on the basis that both clinicians combined lower
extremity impairments in contravention of the Guides. The evidence of record shows that
Dr. Walker combined atrophy with range of motion, while Dr. Kominsky combined laxity
with range of motion, both of which constituted a disfavored combination of range of
motion with a diagnostic category of impairment. As such, the Board did not include the
opinions of Dr. Walker and Dr. Kominsky in its consideration of Mr. Cox’s PPD award,
and confirmed that the remaining evidence indicated that his whole person impairment was
accurately assessed at 0%. Mr. Cox’s argument that the Board disregarded the holding in
Moore is inapplicable, as that analysis had no impact on the Board’s consideration of his
PPD award. Therefore, the Board’s finding that Mr. Cox had no permanent impairment as
a result of his compensable injury was not in error.
Accordingly, we affirm the Board’s October 11, 2022, order.
Affirmed.
ISSUED: April 10, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
5