STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 3, 2014 

RORY L. PERRY II, CLERK 

LYNNDALL W. DUNN, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1013 (BOR Appeal No. 2048196) 

(Claim No. 2006019053) 

PINNACLE MINING COMPANY, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Lynndall W. Dunn, by Reginald D. Henry, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Pinnacle Mining Company, LLC, 

by H. Dill Battle III, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 5, 2013, in 

which the Board affirmed a January 28, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 27, 2012, 

decision which denied a reopening of the claim for an additional 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. 

Mr. Dunn, a coal miner, was injured in the course of his employment on November 18, 

2005, when he slipped on oil and fell. His claim was held compensable for sprain/strain of the 

left knee and tear of the medial meniscus of the left knee. He underwent surgery to treat the 

meniscal tear and was found to be at maximum medical improvement on October 25, 2006, in an 

independent medical evaluation by Robert Kropac, M.D. He was granted a 3% permanent partial 

disability award on November 14, 2006. 

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In an independent medical evaluation on April 23, 2009, Paul Craig, M.D., noted that Mr. 

Dunn suffered from generalized osteoarthritis which was responsible for most of his overall 

discomfort. The condition was not work-related and was progressive in nature. He assessed 1% 

whole person impairment for the left knee. He stated that Mr. Dunn’s degenerative knee changes 

are well documented in his medical records and are expected to progress over time. Randall 

Short, D.O., concurred in a physician review on April 5, 2010. He recommended denying an 

injection for the left knee because the injection was for non-compensable conditions. Mr. Dunn 

had gone more than three years without left knee treatment and the current treatment was for 

arthritis. A December 16, 2005, MRI showed advanced degenerative changes of the lateral 

meniscus. Dr. Short stated that those changes would not have resulted from the compensable 

injury. The degenerative changes were expected to progress with age. 

The StreetSelect Grievance Board also recommended denying retroactive authorization 

for a left knee injection on May 21, 2010. It noted that Mr. Dunn underwent left knee surgery for 

a torn meniscus and was also diagnosed with a grade III chodromalacia, a condition which is 

degenerative in nature and not work-related. Mr. Dunn was found to be at maximum medical 

improvement on October 25, 2006, and was not treated for the left knee again until January 29, 

2010. His left knee pain thereafter increased over several months. The Board determined that the 

complaints are likely due to the significant, pre-existing degenerative disease. On January 24, 

2011, the Office of Judges affirmed a claims administrator’s decision denying a request for 

retroactive authorization for a left knee injection. It found that there was no evidence that Mr. 

Dunn’s knee pain was the result of the compensable injury. 

Bruce Guberman, M.D., performed an independent medical evaluation on October 26, 

2010, at which time Mr. Dunn reported left knee pain that gradually and progressively worsened. 

Dr. Guberman diagnosed chronic post-traumatic strain of the left knee and status post partial 

medial menisectomy and debridement of the patella. He assessed 5% whole person impairment 

and opined that the injury had progressed. He asserted that Mr. Dunn was therefore entitled to an 

additional 2% impairment. Marsha Bailey, M.D., disagreed in her October 4, 2012, independent 

medical evaluation. She opined that Mr. Dunn suffered from chronic left knee pain that was 

solely the result of degenerative joint disease caused by the normal aging process and accelerated 

by excess weight. She noted that advanced degenerative joint disease was found on an MRI two 

weeks after the compensable injury. She stated that Mr. Dunn was not eligible for range of 

motion impairment rating because his lower back pain restricted his lower extremity range of 

motion. She assessed 1% whole person impairment and opined that Mr. Dunn did not suffer an 

aggravation or progression of his compensable injury. His ongoing symptoms were found to be 

the result of degenerative joint disease and arthritis. 

The claims administrator denied a request to reopen the claim for additional permanent 

partial disability on April 27, 2012. The Office of Judges affirmed the decision in its January 28, 

2013, Order. The Office of Judges agreed with the findings of Dr. Bailey, Dr. Short, Dr. Craig, 

and the StreetSelect Grievance Board. The physicians and Grievance Board all found that Mr. 

Dunn’s ongoing left knee complaints were the result of degenerative joint disease and arthritis, 

neither of which were work-related. The Office of Judges noted that he had advanced 

degenerative arthritis in his left knee at the time of the compensable injury, as was documented 

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by an MRI taken shortly after the injury occurred. Mr. Dunn’s left knee symptoms were 

determined to be the result of progressive degenerative arthritis. Since he had not suffered an 

aggravation or progression of his compensable injury, the request to reopen the claim for 

additional permanent partial disability was denied. The Board of Review adopted the findings of 

fact and conclusions of law of the Office of Judges and affirmed its Order in its September 5, 

2013, decision. 

On appeal, Mr. Dunn argues that Dr. Guberman’s finding that his condition had worsened 

establishes a prima facie case for reopening the claim for consideration of an additional 

permanent partial disability award. Pinnacle Mining Company, LLC, asserts that Mr. Dunn’s 

condition is the result of pre-existing degenerative arthritis. Further, Dr. Guberman’s finding of 

range of motion loss is the result of arthritis and not a progression or aggravation of the 

compensable injury. 

After review, this Court agrees with the reasoning of the Office of Judges and the 

conclusions of the Board of Review. Pursuant to West Virginia Code §§ 23-5-2 (2005) and 23-5­

3 (2009), in order to obtain a reopening of a claim, a claimant must submit evidence showing a 

progression or aggravation of the compensable injury. Mr. Dunn has failed to show that he 

sustained a progression or aggravation of his compensable left knee injury. The evidence 

indicates that his current left knee condition is the result of pre-existing, non-compensable 

degenerative arthritis. 

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: December 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 

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