STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

March 6, 2012
 

RORY L. PERRY II, CLERK
 

DARIS R. KISNER, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0788	 (BOR Appeal No. 2045277) 

(Claim No. 2008033641) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

CONSOLIDATION COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Daris R. Kisner, by Robert Stultz, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by Gary 

Nickerson, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 26, 2011, in 

which the Board affirmed an October 15, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 9, 2009, 

decision granting Mr. Kisner a 1% permanent partial disability award for his left ankle injury. 

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. 

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Mr. Kisner injured his left ankle while tightening a steel union on February 13, 2008. On 

April 22, 2009, the claim was held compensable for left ankle fracture, left ankle sprain/strain, 

and left ankle pain. On July 7, 2009, Dr. Condaras performed an independent medical evaluation 

and recommended a 1% permanent partial disability award for the compensable injury. On 

November 8, 2009, Dr. Milan performed an independent medical evaluation and recommended a 

10% permanent partial disability award. On July 22, 2010, Dr. Martin performed an independent 

medical evaluation and agreed with Dr. Condaras’s recommendation of a 1% permanent partial 

disability award. 

In its Order affirming the claims administrator’s July 9, 2009, decision, the Office of 

Judges held that Mr. Kisner is entitled to a 1% permanent partial disability award for his left 

ankle injury. Mr. Kisner disputes this finding and asserts, per the opinion of Dr. Milan, that he is 

entitled to a 10% permanent partial disability award for his left ankle injury. 

The Office of Judges found that the report of Dr. Milan is suspect when compared to the 

other two independent medical evaluations of record. Dr. Milan found much greater range of 

motion impairment in the left ankle than did Dr. Condaras, who evaluated Mr. Kisner before she 

did, and Dr. Martin, who evaluated him afterwards. The Office of Judges further found that Dr. 

Milan did not use the proper device to measure Mr. Kisner’s range of motion impairment, as 

pointed out by Dr. Martin. The Board of Review reached the same reasoned conclusion in its 

decision of April 26, 2011. 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: March 6, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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