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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. 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 April 24, 2012, in 

which the Board affirmed an October 12, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 10, 

2010, decision granting Mr. Blankenship a 9% partial permanent 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. 

 

Mr. Blankenship was employed as a heavy equipment operator for Stacy Equipment & 

Repairs, Inc. on September 24, 2003, when he sustained a sprain/strain to his right shoulder and 

FILED 

October 3, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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neck as a result of falling from excavating equipment. He was diagnosed with a sprain/strain of 

the right shoulder and neck. An MRI performed on January 21, 2009, showed degenerative disc 

disease throughout the cervical spine, along with other abnormalities. On September 10, 2010, 

Mr. Blankenship was granted a 9% permanent partial 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 administrator 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 their 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 radiculopathy, which was not found by either Dr. Wahi or Dr. Mukkamala. 

The Office of Judges also found that Dr. Poletajev rated the claimant for loss of strength, but 

made no findings as to why this is a rare case, 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. Poletajev’s report less evidentiary weight than the 

opinions of Dr. Wahi and Dr. Mukkamala, Mr. Blankenship’s 9% permanent partial disability 

award was affirmed. The Board of Review reached 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 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. 

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