STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 6, 2014 

RORY L. PERRY II, CLERK 

SONNY P. BELLO, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1518 (BOR Appeal No. 2044704) 

(Claim No. 960011332) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

MOUNTAINEER COAL DEVELOPMENT COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Sonny P. Bello, by John C. Blair, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance 

Commissioner, by Jon H. Snyder, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 6, 2012, in 

which the Board affirmed a June 18, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s March 30, 2009, 

decision which granted no additional permanent partial disability award over the previously 

granted 27% permanent partial disability award. 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. 

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Mr. Bello, a coal miner, was injured in the course of his employment when he was 

walking in a mine, slipped on some foam, fell toward the ground, and caught himself with his 

right arm on August 7, 1995. He sustained injuries to his right shoulder and cervical spine, and 

his claim was held compensable for specified disorders, bicipital tenosynovitis, rotator cuff 

sprain, brachial neuritis, and neck sprain. By an Office of Judges’ Order dated January 28, 2005, 

Mr. Bello was awarded 22% impairment for the cervical spine and 7% impairment for the right 

shoulder for a total permanent partial disability award of 27%. 

Mr. Bello was evaluated by Victor Poletajev, D.C., on March 17, 2008. In that 

independent medical evaluation, Dr. Poletajev used the American Medical Association’s Guides 

to the Evaluation of Permanent Impairment, (4th Edition, 1993) to assess 11% cervical spine 

impairment. He calculated an additional 10% impairment for loss of range of motion and 8% 

impairment for sensory and motor defects in the right arm. These were combined for a total of 

26% cervical spine impairment. For the right shoulder, he assessed 11% impairment due to range 

of motion loss and 10% impairment for acromioplasty for a combined total of 20% right 

shoulder impairment. That percentage was then converted to 12% impairment per the American 

Medical Association’s Guides. Dr. Poletajev combined the ratings for a total whole person 

impairment of 35%. 

Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Mr. 

Bello on September 26, 2008. He assessed 2% impairment for the right shoulder. For the cervical 

spine he calculated 11% impairment using the American Medical Association’s Guides. For 

range of motion loss he assessed 9% impairment for a combined total of 19% cervical spine 

impairment. He noted that he did not believe that West Virginia Code of State Rules § 85-20 

(2006) applied in this case but if it did apply, the adjusted cervical impairment would be 25%. 

Therefore, he assessed either 21% or 27% whole person impairment depending on whether West 

Virginia Code of State Rules § 85-20 applied. Dr. Mukkamala found Dr. Poletajev’s report to be 

unreliable. Dr. Poletajev found sensory and motor defects that Dr. Mukkamala did not find. Dr. 

Poletajev also found increased range of motion limitations in the right shoulder that Dr. 

Mukkamala did not discover. Lastly, Dr. Mukkamala stated that Dr. Poletajev gave an 

impairment rating for acromioplasty. He asserted that there is no such impairment in the 

American Medical Association’s Guides. He concluded that Dr. Poletajev’s report was erroneous 

and unreliable. 

Mr. Bello underwent a final independent medical evaluation on March 10, 2010. In that 

evaluation, Paul Bachwitt, M.D., determined that Mr. Bello had sustained 11% cervical spine 

impairment using the American Medical Association’s Guides. He found that range of motion 

measurements were too restricted to be credible and estimated 11% impairment. Pursuant to 

West Virginia Code of State Rules § 85-20-Table E (2006), the impairment was adjusted to 25%. 

For the right shoulder, he calculated 6% impairment. He opined that Dr. Poletajev’s findings 

were unreliable. He determined that the findings were too great for Mr. Bello to have been 

putting forth adequate effort. Dr. Bachwitt noted that Dr. Poletajev found impairment for 

acromioplasty which was incorrect because Mr. Bello meets none of the criteria in the American 

Medical Association’s Guides for that impairment. 

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The claims administrator granted no additional permanent partial disability award over 

the prior 27% award on March 30, 2009. The Office of Judges reversed the decision in its June 

18, 2010, Order. First, it observed that there was a dispute between the evaluators regarding 

whether West Virginia Code of State Rules § 85-20 applies to the post June of 2004 evaluations. 

The Office of Judges held that subsequent independent medical evaluations are to apply West 

Virginia Code of State Rules § 85-20 regardless of whether there is a prior permanent partial 

disability award in the claim that predates the Code’s effective date. 

Second, the Office of Judges found that Mr. Bello was entitled to an additional 3% 

permanent partial disability award for the cervical spine. It determined that both Drs. Mukkamala 

and Bachwitt assessed 25% cervical spine impairment. Their opinions were determined to be 

persuasive. Dr. Poletajev’s assessment of 26% impairment was found to be unreliable because he 

included in his calculation an 8% impairment rating for loss of strength in the right arm. The 

Office of Judges found it was inappropriate to include this in the cervical spine assessment 

because Mr. Bello also sustained a right shoulder injury for which he was rated separately. 

Lastly, the Office of Judges held that there had been no persuasive showing of additional 

impairment in the right shoulder. Mr. Bello asserted that he was entitled to additional impairment 

based upon Dr. Poletajev’s evaluation; however, it was determined that Dr. Poletajev’s right 

shoulder assessment was unpersuasive. The Office of Judges found that Dr. Poletajev included in 

his assessment an impairment rating for acromioplasty. He was the only physician of record to 

do so. Both Dr. Mukkamala and Dr. Bachwitt noted in their reports that the American Medical 

Association’s Guides do not recommend 10% upper extremity impairment for resection of the 

acromion. That award is recommended for a total shoulder replacement and a resection of the 

humeral head. Mr. Bello did not undergo either of those surgeries. The Office of Judges held that 

the preponderance of the evidence shows that Mr. Bello suffered 25% impairment to his cervical 

spine and no more than 7% impairment to his right shoulder as the result of his compensable 

injury. 

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

Judges and affirmed its Order in its December 6, 2012, decision. This Court agrees with the 

reasoning and conclusions of the Board of Review. The evidence indicates Mr. Bello suffered no 

more than 25% impairment to his cervical spine and 7% impairment to his right shoulder as the 

result of his work-related injury. 

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. 

Affirmed. 

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ISSUED: June 6, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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