STATE OF WEST VIRGINIA FILED 

July 27, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

CHARLES W. MARTIN, 

Claimant Below, Petitioner 

vs.) No. 13-1026 (BOR Appeal No. 2048207) 

(Claim No. 2009068597) 

MAGNUM COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Charles W. Martin, by Reginald D. Henry, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Magnum Coal Company, by Henry 

C. Bowen, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 13, 2013, in 

which the Board affirmed a March 7, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 13, 2012, 

decision, which closed Mr. Martin’s claim for an additional award of permanent partial 

disability. 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 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. 

Mr. Martin was employed by Magnum Coal as a chief electrician. Mr. Martin suffered 

two work-related injuries. The first one was a lower back injury that occurred in 1986. Mr. 

Martin was granted a 17% permanent partial disability award based upon that injury. Then on 

November 13, 2008, Mr. Martin suffered an injury to his ribs, back, legs, and pelvis. Mr. 

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Martin’s claim was held compensable for an open bimalleolar fracture, a closed fracture of pubis, 

a closed fracture of lumbar vertebrae without spinal cord injury, a closed fracture of the shaft of 

fibula with tibia, and an abrasion or friction burn of trunk without infection. Mr. Martin’s right 

knee was not a compensable diagnosis under this claim or the previous one. Mr. Martin has had 

independent medical evaluations from Paul Bachwitt, M.D., Bruce Guberman, M.D., Marsha 

Bailey, M.D., and Robert Walker, M.D. Dr. Bachwitt found no impairment in Mr. Martin’s 

lumbar spine because his previous 17% award covered all of his impairment. Dr. Bachwitt 

recommended 15% whole person impairment for Mr. Martin’s pelvis and 5% whole person 

impairment for Mr. Martin’s right ankle. In total Dr. Bachwitt recommended 19% permanent 

partial disability. The claims administrator adopted the report of Dr. Bachwitt and awarded 19% 

permanent partial disability on November 24, 2009. 

On January 19, 2011, Dr. Guberman agreed that Mr. Martin had reached his maximum 

degree of medical improvement. He, however, believed Mr. Martin’s lumbar spine symptoms 

and abnormalities were more attributable to his current injury. Dr. Guberman agreed with Dr. 

Bachwitt that Mr. Martin had sustained 15% impairment with regard to his fractured pelvis. Dr. 

Guberman also recommended 8% whole person impairment beyond the 17% awarded in 1988. 

Dr. Guberman recommended 5% impairment for Mr. Martin’s right ankle injury and 1% 

impairment for Mr. Martin’s right knee. His total recommendation was 27% whole person 

impairment, which resulted in an increase of 8% permanent partial disability because he had 

already been awarded 19% permanent partial disability in 2008. 

Dr. Bailey also agreed that Mr. Martin had reached his maximum degree of medical 

improvement. She recommended 8% impairment for Mr. Martin’s lumbar spine but noted that he 

had previously received 17% permanent partial disability. Dr. Bailey found no impairment for 

the right lower leg and ankle fractures. Dr. Bailey agreed with Drs. Guberman and Bachwitt that 

Mr. Martin suffered 15% whole person impairment in the pelvis area. Dr. Bailey’s final 

recommendation was for no increase in permanent partial disability because the 17% permanent 

partial disability award related to the 1986 injury and the increase to 19% permanent partial 

disability award for the 2008 injury fully compensated Mr. Martin. 

Dr. Walker, on June 18, 2012, opined that Mr. Martin suffered 13% whole person 

impairment for the lumbar spine, 15% whole person impairment for the pelvis, and 19% whole 

person impairment for the right lower extremity. This resulted in a recommendation of 40% 

whole person impairment. 

On January 13, 2012, the claim administrator decided that Mr. Martin had been fully 

compensated for his injuries with the 17% prior award for the spine and the 19% permanent 

partial disability award related to this claim. Mr. Martin protested. 

The Office of Judges first determined that Mr. Martin’s prior award of 17% permanent 

partial disability and 19% permanent partial disability fully compensated him. The Office of 

Judges noted that right knee injuries were never a part of the claim and that no right knee injury 

has ever been held compensable in this claim. As a result, the Office of Judges refused to 

attribute any whole person impairment based upon the right knee condition. The Office of Judges 

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noted that Dr. Guberman and Dr. Walker apportioned the prior 17% permanent partial disability 

award out before they applied West Virginia Code of State Rules § 85-20-C (2006), to the instant 

claim. The Office of Judges noted that this was a bad practice because the 17% permanent partial 

disability award previously granted was based upon the report of Dr. Lee. Back when Dr. Lee 

suggested the award the American Medical Association’s Guides to the Evaluation of Permanent 

Impairment (4th ed. 1993), was not published. As a result, the Office of Judges determined that 

because Dr. Lee did not base his recommendation of whole person impairment strictly upon the 

range-of-motion model, it hardly seems logical to adopt the technique suggested by Drs. 

Guberman and Walker to subtract Mr. Martin’s pre-existing award from their range of motion 

findings and thereafter apply West Virginia Code of State Rules § 85-20-C. The Office of Judges 

noted that in applying West Virginia Code § 23-4-9b (2003), to the present fact situation, the 

clearest and most logical approach would be to subtract the previous impairment from the 

present recommendations after they had been adjusted by West Virginia Code of State Rules § 

85-20-C. The Office of Judges then determined that it was clear that even the most liberal 

evaluation of Mr. Martin’s low back condition suggests no more than 13% impairment under that 

apportionment theory. The Office of Judges affirmed the claims administrator’s decision to close 

the claim for permanent partial disability. The Board of Review adopted the findings of the 

Office of Judges and affirmed its Order. 

We agree with the findings of the Office of Judges and conclusions of the Board of 

Review. Dr. Walker’s report contained the highest level of impairment and Dr. Walker only 

found 13% impairment in the spine when apportioned correctly. The apportionment is supported 

by this Court’s previous jurisprudence in Boone v. SWVA, Inc., 12-0221 (2014) (memorandum 

decision) (affirming the Board of Review’s decision, which held that Dr. Mukkamala’s 

apportionment was most in agreement with the American Medical Association’s Guides because 

he apportioned after the placement in West Virginia Code of State Rules § 85-20-C as opposed 

to Dr. Guberman who apportioned prior to the placement in West Virginia Code of State Rules § 

85-20-C). As a result, the previous grant of a 17% permanent partial disability award fully 

compensated Mr. Martin as it related to his lower back. Next, there has never been a 

compensable knee injury in this claim or any other claims of Mr. Martin’s. As a result, his 

symptoms cannot be traced to work, and he should not be awarded any permanent partial 

disability based upon it. The award of 15% permanent partial disability related to the pelvic 

injury is not refuted by any physician. Finally, the grant of 5% permanent partial disability for 

the ankle is supported by the reports of Dr. Mukkamala and Dr. Guberman. Dr. Walker found 

more impairment than the other physicians of record concerning the right lower extremity. 

However, his calculation of impairment included knee impairment. As discussed earlier no 

compensable condition related to the knee has been recognized as a compensable condition of 

any injury suffered by Mr. Martin. As a result, it was not in error for the Office of Judges and 

Board of Review to not award any permanent partial disability based upon it. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

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Affirmed. 

ISSUED: July 27, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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