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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

DANA E. MOORE,

Claimant Below, Petitioner

vs.) No. 20-0672 (BOR Appeal No. 2055192)

(Claim No. 2017026735)

ARCH COAL, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Dana E. Moore, by Counsel Lori J. Withrow, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). Arch Coal, Inc., by 

Counsel Daniel G. Murdock, filed a timely response.

The issues on appeal are additional compensable conditions and permanent partial 

disability. The claims administrator granted a 5% permanent partial disability award for the 

cervical spine on August 7, 2018. On November 12, 2018, the claims administrator denied the 

addition of chronic neck and back pain and neck pain with neurological deficit to the claim. The 

Workers’ Compensation Office of Judges (“Office of Judges”) reversed the decisionsin its January 

29, 2020, Order, granted a 13% permanent partial disability award, and added thoracic strain to 

the claim. The Order was reversed by the Board of Review on August 4, 2020, and the claims 

administrator’s August 7, 2018, and November 12, 2018, decisions were reinstated. 

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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:

FILED

February 1, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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(b) 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.

. . . .

(d) 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 re-weighing 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). 

Mr. Moore, a coal mine airway examiner, injured his neck at work on May 10, 2017. While 

fleeing a falling rock, Mr. Moore struck his head on a crib block. Mr. Moore finished his shift that 

day and was then transported to Broaddus General Hospital via ambulance. CT scans of the head, 

thoracic spine, and cervical spine showed no acute injuries. Mr. Moore was diagnosed with neck 

strain, thoracic strain, and a head injury. The Employees’ and Physicians’ Report of Injury was 

completed that day and indicates Mr. Moore sustained a cervical strain, thoracic strain, and a head 

injury. The claim was held compensable for head contusion and neck strain on May 12, 2017.

Mr. Moore sought treatment for the compensable injury from Marilyn Bonfili, M.D., on 

May 16, 2017. He reported neck pain, stiffness, spasms, and tenderness that radiated into the left 

shoulder. Mr. Moore was to undergo physical therapy. A cervical MRI was performed on July 27, 

2017, and showed mild disc bulging at C6-7 with no herniation or stenosis. Mr. Moore returned to 

Dr. Bonfili on September 1, 2017, and stated that physical therapy was not helping. He reported, 

however, that he had not been in three weeks. Dr. Bonfili recommended physical therapy and 

increased medication. On November 16, 2017, Dr. Bonfili stated that Mr. Moore reported no 

change in his existing symptoms, and he had developed pain in his right shoulder. 

P. Kent Thrush, M.D., performed an Independent Medical Evaluation on April 4, 2018, in 

which Mr. Moore reported severe stiffness and chronic aching in his neck. Mr. Moore stated that 

he worked light duty until he retired in June of 2017. Dr. Thrush reviewed Mr. Moore’s MRIs and 
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found that a 2007 scan showed a subtle bulge at C6-7.1 The post-injury MRI showed a bulge at 

C6-7 that was only slightly larger. Dr. Thrush concluded that Mr. Moore had reached maximum 

medical improvement and required no additional treatment. He stated that Mr. Moore’s range of 

motion measurements were invalid due to guarding. Using Table 75 of the American Medical 

Association’s Guides to the Evaluation of Permanent Impairment (4th ed 1993), Dr. Thrush found 

4% impairment for the cervical sprain. He placed Mr. Moore in Cervical Category II from West 

Virginia Code of State Rules § 85-20-E and adjusted the rating to 5%. Dr. Thrush found that Mr. 

Moore fully recovered from the head contusion and sustained 0% impairment. 

On June 13, 2018, Bruce Guberman, M.D., performed an Independent Medical Evaluation 

in which he diagnosed resolved head contusion, chronic posttraumatic cervical strain, and chronic 

posttraumatic thoracic strain. Mr. Moore had reached maximum medical improvement. For the 

head injury, Dr. Guberman found 0% impairment. Dr. Guberman found 4% cervical impairment 

using Table 75 of the AMA Guides and 7% impairment for range of motion deficits. He then 

placed Mr. Moore in Cervical Category II from West Virginia Code of State Rules § 85-20-E and 

adjusted the rating to 8%. For the thoracic spine, Dr. Guberman found 2% impairment using Table 

75 of the AMA Guides and 3% impairment for range of motion deficits. The impairments 

combined for 5% thoracic spine impairment. Combining the 8% cervical impairment with the 5% 

thoracic impairment, Dr. Guberman’s total rating was 13%. 

The claims administrator granted a 5% permanent partial disability award for the cervical 

spine on August 7, 2018. On October 2, 2018, Dr. Bonfili completed a Diagnosis Update in which 

she stated that Mr. Moore had chronic neck and back pain with the secondary diagnosis of neck 

pain with neurological deficit post-injury. It was noted that Mr. Moore’s symptoms were not 

present prior to the compensable injury and that the symptoms were worsening. The claims 

administrator denied the addition of chronic neck and back pain and neck pain with neurological 

deficit to the claim on November 12, 2018.

Mr. Moore testified in a February 13, 2019, deposition that he sustained a prior work injury 

in 2008. He had no lingering symptoms from the injury and returned to work within a week. At 

the time of the compensable injury at issue, Mr. Moore was having no neck or mid back symptoms. 

Mr. Moore stated that he finished his shift the day of his injury, but he was in pain, so an ambulance 

was called. Mr. Moore testified that he was unable to return to work following his accident. On 

May 7, 2019, Mr. Moore returned to Dr. Bonfili and reported no changes in his pain level. He also 

stated that he had ongoing numbness and tingling in his upper back and bilateral shoulders. 

Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on July 8, 

2019, in which he diagnosed resolved head injury and cervical sprain. Mr. Moore had reached 

maximum medical improvement. Dr. Mukkamala found 0% impairment for the head injury. For 

the cervical spine, Dr. Mukkamala found 9% impairment due to range of motion deficits. Under 

Table 75 of the AMA Guides, he assessed 4% impairment. His combined impairment rating was 

13%. Dr. Mukkamala then placed Mr. Moore in Cervical Category II from West Virginia Code of 

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The radiologist’s interpretation of the December 3, 2007, MRI was that it showed no 

abnormalities, disc bulges, herniations, or spinal canal narrowing. 
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State Rules § 85-20-E and adjusted the rating to 8%. Dr. Mukkamala opined that the impairment 

was due to both a preexisting degenerative condition and the compensable injury. Dr. Mukkamala 

noted that Mr. Moore had received a 5% permanent partial disability award and opined that he was 

fully compensated for the compensable injury. Regarding the thoracic spine, Dr. Guberman found 

no thoracic spine impairment. He opined that Dr. Guberman’s findings of 8% cervical spine 

impairment should have been apportioned and that Dr. Guberman was unaware of Mr. Moore’s 

prior injury and cervical symptoms. Dr. Mukkamala opined that Mr. Moore did not injure his 

thoracic spine in the compensable injury. 

In its January 29, 2020, Order, the Office of Judges reversed the claims administrator’s 

decisions granting a 5% PPD award for the cervical spine and denying the addition of chronic neck 

and back pain and neck pain with neurological deficit to the claim. The Office of Judges instead 

granted a 13% award and added thoracic strain to the claim. It found that when Mr. Moore was 

initially treated, he reported neck and thoracic spine symptoms and was diagnosed with cervical 

and thoracic strains. Additionally, a thoracic CT scan was performed. The Office of Judges found 

that thoracic strain was also listed as a condition on the physician’s section of the Employees’ and 

Physicians’ Report of Injury. Mr. Moore was treated for the compensable injury by Dr. Bonfili, 

who noted neck pain that radiated into the trapezius, left shoulder, and scapula. She requested the 

addition of chronic neck and back pain and neck pain with neurological deficit to the claim. The 

Office of Judges concluded that the back pain referred to is the thoracic spine. Though Dr. 

Mukkamala opined that the pain was in the left scapular area, the Office of Judges determined that 

a preponderance of the evidence indicates Mr. Moore sustained a thoracic strain as a result of the 

compensable injury. 

Regarding permanent partial disability, the Office of Judges found that the award was 

based on the report of Dr. Thrush. Dr. Thrush opined that the 2007 MRI showed a subtle bulge at 

C6-7. The Office of Judges found that the report does not document such a finding. His report was 

determined to be at odds with the diagnostic evidence and therefore unreliable. The Office of 

Judges also found that Dr. Mukkamala’s evaluation was unreliable. Dr. Mukkamala assessed 8% 

cervical impairment but then apportioned half for a longstanding preexisting degenerative 

condition. The Office of Judges concluded that the apportionment was not supported by the 

evidence of record. The 2007 MRI showed no cervical disc bulges, herniations, or spinal canal or 

foraminal narrowing. The CT scan performed the day of the injury showed moderate degenerative 

changes, but the Office of Judges found no evidence that Mr. Moore had any cervical spine 

symptoms prior to the compensable injury. It therefore concluded that Dr. Mukkamala’s 

apportionment was unsupported. The Office of Judges determined that Dr. Guberman’s report is 

the most reliable of record. He assessed 8% cervical impairment and 5% thoracic spine 

impairment. Mr. Moore was already granted a 5% permanent partial disability award; therefore, 

the Office of Judges awarded an additional 3% cervical award and a 5% award for the thoracic 

spine. 

The Board of Review reversed the Office of Judges’ Order in its August 4, 2020, decision. 

It found that thoracic sprain is not a compensable condition in the claim. Dr. Bonfili requested the 

addition of chronic neck pain longer than three months and neck pain with neurological deficit 

after injury to the claim. She did not request the addition of thoracic strain to the claim. Further, 
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the Board of Review found that her treatment notes do not show that Mr. Moore was treated for a 

thoracic sprain. It therefore concluded that thoracic sprain should not have been added to the claim. 

Regarding permanent partial disability, the Board of Review found that the Office of 

Judges’ Order was based on the report of Dr. Guberman. Dr. Guberman found 8% cervical and 

5% thoracic spine impairment. The Board of Review determined that his report could not be used 

because his rating includes impairment for the noncompensable thoracic sprain. The Board of 

Review therefore reinstated the claims administrator’s grant of a 5% permanent partial disability 

award for the cervical spine. 

After review, we agree with the conclusions of the Board of Review. For an injury to be 

compensable it must be a personal injury that was received in the course of employment, and it 

must have resulted from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. 

Va. 796, 172 S.E.2d 698 (1970). A preponderance of the evidence fails to support thoracic strain 

as a compensable condition in the claim. Though Mr. Moore initially underwent a thoracic spine 

CT scan and was diagnosed with thoracic strain at the emergency room on the day of his injury, 

the condition was not held compensable, and Mr. Moore did not protest that Order. Further, Dr. 

Bonfili’s treatment notes do not indicate a diagnosis of or treatment for a thoracic strain. Also, her 

Diagnosis Update requested the addition of chronic neck and back pain longer than three months 

and neck pain with neurological deficit after injury to the claim. A thoracic spine condition was 

not included. Because thoracic strain is not a compensable condition in the claim, the Board of 

Review was correct to find that such condition could not be included in a permanent partial 

disability award. The claims administrator’s grant of a 5% award was therefore correctly 

reinstated. 

 Affirmed.

ISSUED: February 1, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton