STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

March 17, 2015 

RORY L. PERRY II, CLERK 

DALLAS J. BLEVINS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0589 (BOR Appeal No. 2047966) 

(Claim No. 2011021611) 

CCBCC, INC.,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Dallas J. Blevins, by John C. Blair, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. CCBCC, Inc., by James W. Heslep, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 20, 2013, in which 

the Board affirmed a December 13, 2012, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s September 28, 2011, 

decision granting a 0% 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. Blevins, an employee of CCBCC, Inc., slipped on a piece of ice at work and 

hyperextended his right knee on December 17, 2010. While Mr. Blevins was falling his toolbox 

slipped from his hand and landed on his right knee. Mr. Blevins reported to Logan Regional 

Medical Center on December 26, 2010, with right knee pain. Mr. Blevins was seen by Robert 

McCleary, D.O., who diagnosed internal derangement of the right knee. Mr. Blevins filed his 

application for workers’ compensation benefits. The claims administrator approved the claim for 

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a sprain but specifically denied adding internal derangement as a compensable condition of the 

claim. Thereafter, Mr. Blevins underwent right knee arthroscopy and plica debridement. The 

surgery was performed by Dr. McCleary. Mr. Blevins had five follow-up appointments with Dr. 

McCleary. Dr. McCleary did not note any atrophy in any of the five post-surgery follow-up 

visits. Mr. Blevins then filed for permanent partial disability based upon his compensable right 

knee strain. Mr. Blevins had independent medical evaluations from Prasadarao Mukkamala, 

M.D., Paul Bachwitt, M.D., and Bruce Guberman, M.D. Drs. Bachwitt and Mukamala opined 

that Mr. Blevins had no resulting disability from right leg atrophy because measurements show 

there was not any more than one centimeter of difference in the size of his right calf as compared 

to his left calf and his right thigh as compared to his left thigh. However, Dr. Guberman found 

1.2 centimeters of atrophy in the right thigh and one centimeter atrophy in the right calf. Based 

upon the calf and thigh atrophy, Dr. Guberman found 2% whole person impairment. Dr. 

Guberman was critical of Dr. Bachwitt’s measurements because, according to Dr. Guberman, 

atrophy is properly measured 10 centimeters above the patella and at the maximum calf 

circumference. Dr. Guberman noted that Dr. Bachwitt measured from the maximum calf 

circumference and 20 centimeters above the tibial tubericle. Dr. Mukkamala was critical of Dr. 

Guberman because in his opinion 20 centimeters above the tibial tubericle is the same 

measurement as 10 centimeters above the patella. 

The Office of Judges determined that Mr. Blevins was not entitled to any more than a 0% 

permanent partial disability award. The Office of Judges reached this conclusion by relying on 

the consistent reports of Drs. Bachwitt and Mukkamala. The Office of Judges determined that the 

evidence of record was more consistent with Drs. Bachwitt and Mukkamala’s opinion because 

there was no evidence of right leg atrophy indicated by Dr. McCleary, the treating physician, in 

any of the five follow-up visits after Mr. Blevin’s knee surgery. The Board of Review adopted 

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

We agree with the Office of Judges and the Board of Review. Mr. Blevins has not shown 

that he is entitled to any more than a 0% permanent partial disability award as a result of his 

December 17, 2010, injury. The only reviewing physician that assigned Mr. Blevins any whole 

person impairment was Dr. Guberman. However, Dr. Guberman’s findings are not consistent 

with Dr. McCleary’s treatment notes. Dr. McCleary, Mr. Blevins’s treating physician, did not 

note atrophy in any of the five post-operative follow-up visits. Furthermore, the consistent and 

well-reasoned reports of Drs. Mukkmala and Dr. Bachwitt demonstrate that Mr. Blevins suffers 

from no ratable whole person impairment. 

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: March 17, 2015 

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CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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