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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

BILLY J. BLANKENSHIP, Claimant Below, Petitioner

vs.) No. 12-0623 (BOR Appeal No. 2046540) (Claim No. 2004016035)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER Commissioner Below, Respondent

and

STACY EQUIPMENT & REPAIRS, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Billy J. Blankenship, by John C. Blai r, 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 April 24, 2012, in which the Board affirmed an October 12, 2011, Or der of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affi rmed the claims administrator’s September 10, 2010, decision granting Mr. Blankenshi p a 9% partial permanent disa bility 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Blankenship was employed as a heavy equipment operator for Stacy Equipment & Repairs, Inc. on September 24, 2003, when he sustai ned a sprain/strain to his right shoulder and FILED

October 3, 2014
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 neck as a result of falling from excavating equipm ent. He was diagnosed with a sprain/strain of the right shoulder and neck. An MRI perfor med on January 21, 2009, showed degenerative disc disease throughout the cervical spine, along w ith other abnormalities. On September 10, 2010, Mr. Blankenship was granted a 9% permanent pa rtial disability award based upon the findings of Rakesh Wahi, M.D. Mr. Blankenship protested and argued that he was entitled to a 24% permanent partial disability award based upon the opinion of Victor Poletajev, D.C.

The Office of Judges affirmed the claims admi nistrator and held that Mr. Blankenship is entitled to a 9% permanent partial disability award for his injuries sustained on September 24, 2003. The Office of Judges determined that the objective findings of Dr. Wahi and P. B. Mukkamala, M.D., corroborated each other and, therefore, found thei r opinions more persuasive than Dr. Poletajev. The Office of Judges noted that Dr. Poletajev found significantly higher impairment yet failed to provide any explanation to support his findings. Dr. Poletajev also found objective evidence of ra diculopathy, which was not found by either Dr. Wahi or Dr. Mukkamala. The Office of Judges also found that Dr. Poletaje v rated the claimant fo r loss of strength, but made no findings as to why this is a rare ca se, which is required by the American Medical

Association’s Guides to the Evaluation of Permanent Impairment , (4th Edition, 1993), for the matter to be rated separately.

Because the Office of Judges gave Dr. Poletaje v’s report less evidentiary weight than the opinions of Dr. Wahi and Dr. Mukkamala, Mr. Bl ankenship’s 9% permanent partial disability

award was affirmed. The Board of Review reache d the same reasoned conclusions in its decision of April 24, 2012. We agree with the reasoning and conclusions of the Board of Review.

For the foregoing reasons, we find that the decisi on of the Board of Revi ew 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.



### ISSUED: October 3, 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