STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

August 13, 2014 

RORY L. PERRY II, CLERK 

APRIL MILLER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0370 (BOR Appeal No. 2047634) 

(Claim No. 2008002710) 

FAYETTE COUNTY BOARD OF EDUCATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner April Miller, by Reginald D. Henry and Rodney A. Skeens, her attorneys, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review. Fayette 

County Board of Education, by Matthew L. Williams, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 22, 2013, in 

which the Board affirmed a September 12, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 16, 2011, 

decision granting no 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. 

Ms. Miller worked as a secretary for the Fayette County Board of Education. On July 16, 

2007, Ms. Miller fell out of a chair and hit the back of her head on the corner of a desk, which 

produced a bruise on the back of her head. The claims administrator held the claim compensable 

for a contusion of the face, scalp, and neck and an unspecified head injury. Following the injury, 

Ms. Miller was treated by Rajesh Patel, M.D., for complaints of mid and low back pain, which 

Dr. Patel found had pre-existed the injury. An MRI was then taken of Ms. Miller’s cervical spine 

which showed multilevel degeneration without disc herniations. Michael J. Kominsky, D.C., 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

then evaluated Ms. Miller and found that she had headaches and neck pain for the last five to 

eight years. Dr. Kominsky also determined that Ms. Miller was severely limited due to 

fibromyalgia. Andrew E. Landis, M.D., also evaluated Ms. Miller and determined that she had 

no whole person impairment under the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment (4th ed. 1993) related to her compensable injury. On 

March 16, 2011, the claims administrator granted Ms. Miller no permanent partial disability 

award based on Dr. Landis’s report. Dr. Kominsky then evaluated Ms. Miller a second time and 

found that she had 4% impairment under the American Medical Association’s Guides for a C5-6 

disc protrusion. He also recommended 6% impairment for abnormal motion in the cervical spine, 

which he combined for a 10% whole person impairment rating. Dr. Kominsky adjusted this 

rating to 8% to fit within Cervical Category II of West Virginia Code of State Rules § 85-20-E 

(2006). Bill Hennessey, M.D., then evaluated Ms. Miller. He determined that she had 0% whole 

person impairment related to her compensable injury. On September 12, 2012, the Office of 

Judges affirmed the claims administrator’s decision. The Board of Review affirmed the Order of 

the Office of Judges on March 22, 2013, leading Ms. Miller to appeal. 

The Office of Judges concluded that Ms. Miller had 0% whole person impairment related 

to the July 16, 2007, injury. In reaching this determination, the Office of Judges relied on the 

opinions of Dr. Landis and Dr. Hennessey. The Office of Judges found that Ms. Miller was 

suffering from multiple non-compensable conditions, including fibromyalgia and a lumbar 

sprain. The Office of Judges found that the only conditions related to the compensable injury 

were a contusion of the face, scalp, and neck and an unspecified head injury. It determined that 

Dr. Landis and Dr. Hennessey found no permanent impairment related to these conditions. It also 

considered the impairment recommendation of Dr. Kominsky. However, the Office of Judges 

found that Dr. Kominsky’s impairment rating related to Ms. Miller’s non-compensable 

conditions, including her cervical strain and cervical disc protrusion at the C5-6 disc. The Board 

of Review adopted the findings of the Office of Judges and affirmed its Order. 

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

Judges. Ms. Miller has not demonstrated that she is entitled to any permanent partial disability 

award related to her July 16, 2007, injury. The only conditions related to this injury are a 

contusion of the face, scalp, and neck and an unspecified injury of the head. Dr. Landis and Dr. 

Hennessey both determined that these conditions had completely resolved and Ms. Miller had no 

whole person impairment related to her injury. There is nothing in the record undermining the 

credibility of Dr. Landis’s and Dr. Hennessey’s recommendations, and the Office of Judges was 

within its discretion in relying on their opinions. The Office of Judges also properly disregarded 

Dr. Kominsky’s recommendation. Ms. Miller has a significant history of pre-existing, noncompensable health problems. Dr. Kominsky’s impairment recommendation would have 

provided Ms. Miller with recovery for these conditions. 

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. 

2 
 

 

 

 

 

 

ISSUED: August 13, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

Affirmed. 

3