STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

JOHNNY KENNEDY, June 8, 2017 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0276 (BOR Appeal No. 2050788) 

(Claim No. 2012036325) 

MAXWELL & KEYSER, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Johnny Kennedy, by John H. Shumate Jr., his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. 

The issue on appeal is the appropriate amount of a permanent partial disability award to 

be granted to Mr. Kennedy as a result of the compensable injury in this claim. This appeal 

originated from the April 10, 2014, claims administrator’s decision granting a 6% permanent 

partial disability award. In its September 1, 2015, Order, the Workers’ Compensation Office of 

Judges reversed the decision and granted a 10% permanent partial disability award. The Board of 

Review’s Final Order dated February 22, 2016, affirmed the Order of the Office of Judges. 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

Mr. Kennedy, a plumber, sustained an injury to his neck, shoulder, and upper back while 

working underneath a sink on May 7, 2012. Upon trying to remove a nut, it suddenly gave way, 

causing Mr. Kennedy to jerk. He felt immediate pain in his left arm and pain in his neck and 

back the next morning. On June 1, 2012, the claims administrator held the claim compensable for 

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neck, upper back, and left shoulder sprains/strains. Mr. Kennedy underwent three independent 

medical evaluations to determine his permanent partial disability. 

On March 4, 2014, Paul Bachwitt, M.D., performed an independent medical evaluation of 

Mr. Kennedy. Dr. Bachwitt detailed Mr. Kennedy’s medical history which included a 2012 MRI 

revealing a C3-4 disc protrusion and a left paracentral protrusion at C5-6 with foraminal stenosis. 

At a previous exam, Dr. Bachwitt had diagnosed Mr. Kennedy with a cervical strain/sprain 

superimposed on pre-existing degenerative changes and a left shoulder sprain. Dr. Bachwitt 

examined Mr. Kennedy and found him to be at maximum medical improvement. Upon 

examination, there was no clinical finding of a disc lesion. Dr. Bachwitt believed there was a 

causal relationship between the cervical and shoulder sprains/strains and the May 7, 2012, 

compensable injury. However, no further treatment was necessary. In an addendum written on 

March 19, 2014, Dr. Bachwitt recommended 4% impairment for the cervical spine and 6% 

impairment for motion restriction for a total of 10% whole person impairment. Dr. Bachwitt 

apportioned half of that to pre-existing degenerative changes. For the left shoulder, Dr. Bachwitt 

found 6% impairment for the upper extremity. He apportioned 5% to pre-existing conditions. Dr. 

Bachwitt’s total combined recommendation was 6% whole person impairment. The claims 

administrator granted a 6% permanent partial disability award based on Dr. Bachwitt’s report. 

On January 15, 2015, Mr. Kennedy underwent an independent medical evaluation by 

Bruce Guberman, M.D. Dr. Guberman determined Mr. Kennedy had reached maximum medical 

improvement. He assigned Mr. Kennedy 13% whole person impairment for the cervical spine 

and 4% for the left shoulder. His total recommendation was 18% whole person impairment. 

Finally, Mr. Kennedy underwent an independent medical evaluation by Prasadarao Mukkamala, 

M.D., on May 5, 2015. Dr. Mukkamala found 8% impairment for the cervical spine and 2% for 

the left shoulder. He recommended a total of 10% whole person impairment. Dr. Mukkamala 

noted that Dr. Guberman’s report was flawed because he rated Mr. Kennedy based on a 

neurological deficit when there was no objective evidence of record to support such a diagnosis. 

On September 1, 2015, the Office of Judges issued an Order reversing the claims 

administrator’s decision. The Office of Judges found that there was essentially no difference 

between the findings of Dr. Bachwitt and Dr. Mukkamala except that Dr. Bachwitt apportioned 

for pre-existing conditions. The Office of Judges determined that the issue would be resolved in 

favor of Mr. Kennedy pursuant to West Virginia Code §23-4-1g (2005). The Office of Judges 

found that Dr. Guberman’s report was less reliable because no other objective evidence was 

submitted to support a finding of cervical spine radiculopathy. This cast doubt on his report and 

the Office of Judges ultimately awarded Mr. Kennedy a 10% permanent partial disability award. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges 

and affirmed its Order on February 22, 2016. 

We disagree with the reasoning and conclusions of the Office of Judges as affirmed by 

the Board of Review. The Office of Judges improperly applied West Virginia Code §23-4-1g, 

which states that if after weighing all the evidence there is a finding that an equal amount of 

evidentiary weight exists favoring conflicting matters, the resolution most consistent with the 

claimant’s position will be adopted. While Dr. Bachwitt and Dr. Mukkamala have seemingly 

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identical recommendations regarding an impairment rating, they do not merit identical 

evidentiary weight. Dr. Mukkamala stated in his independent medical evaluation that he did not 

find any errors in Dr. Bachwitt’s impairment rating, noting that the only difference was that Dr. 

Bachwitt chose to apportion the impairment while Dr. Mukkamala chose not to apportion the 

impairment. It remains unclear what the true extent of Mr. Kennedy’s pre-existing conditions are 

in relation to his compensable injury. 

For the foregoing reasons, we find that the decision of the Board of Review is based upon 

a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision 

of the Board of Review is reversed and remanded for further development of the evidence 

regarding the extent of Mr. Kennedy’s pre-existing conditions in relation to his compensable 

injury. 

Reversed and Remanded. 

ISSUED: June 8, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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