STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 11, 2014 

RORY L. PERRY II, CLERK 

DANIEL BOONE, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0221 (BOR Appeal No. 2046410) 

(Claim No. 2007214827) 

SWVA, INC.,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Daniel Boone, by Edwin H. Pancake, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by Steven K. Wellman, 

its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 24, 2012, in 

which the Board affirmed an August 29, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s July 23, 2010, 

decision granting Mr. Boone a 0% permanent partial disability award. The Office of Judges 

granted Mr. Boone a 5% 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. Boone worked in the maintenance department of SWVA, Inc. On December 9, 2006, 

Mr. Boone injured his low back when he stepped out of a crane and fell. The claim administrator 

held the claim compensable. An MRI was then taken of Mr. Boone’s lumbar spine, which 

revealed a disc herniation at L5-S1 and a bulging L4-5 disc caused by lumbar disc disease. Mr. 

Boone’s claim was submitted to Marsha Lee Bailey, M.D., for an independent medical 

evaluation. Dr. Bailey found that Mr. Boone had 7% whole person impairment based on the 

range of motion model of the American Medical Association’s Guides to the Evaluation of 

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Medical Impairment (4th ed. 1993) and Lumbar Category II of West Virginia Code of State 

Rules § 85-20-C (2006). Dr. Bailey, however, attributed Mr. Boone’s disability to chronic low 

back pain related to degenerative disc disease and apportioned 0% whole person impairment to 

his compensable injury. The claims administrator granted Mr. Boone a 0% permanent partial 

disability award based on Dr. Bailey’s report. Bruce A. Guberman, M.D., then evaluated Mr. 

Boone and found that he had 16% whole person impairment under the American Medical 

Association’s Guides. Dr. Guberman apportioned 13% to the compensable injury and the 

remainder of his impairment to a pre-existing degenerative condition. He then placed Mr. Boone 

in Category II of West Virginia Code of State Rules § 85-20-C and adjusted his recommendation 

to an 8% whole person impairment rating. Prasadarao B. Mukkamala, M.D., then evaluated Mr. 

Boone. He found that Mr. Boone had a lumbar sprain associated with a disc protrusion at L4-5. 

Dr. Mukkamala determined that Mr. Boone had 15% whole person impairment under the 

American Medical Association’s Guides. Dr. Mukkamala adjusted his recommendation to an 8% 

whole person impairment rating to fit within Category II of West Virginia Code of State Rules § 

85-20-C. Dr. Mukkamala then apportioned 3% of that impairment to Mr. Boone’s pre-existing 

degenerative conditions and found that he had 5% whole person impairment related to his 

compensable injury. On August 29, 2011, the Office of Judges reversed the claims 

administrator’s decision and granted Mr. Boone a 5% permanent partial disability award. The 

Board of Review affirmed the Order of the Office of Judges on January 24, 2012, leading Mr. 

Boone to appeal. 

The Office of Judges concluded that the claims administrator was incorrect in finding that 

Mr. Boone had no whole person impairment. The Office of Judges further concluded that Mr. 

Boone had 5% whole person impairment and should be granted a 5% permanent partial disability 

award. The Office of Judges determined that Dr. Mukkamala’s recommendation was the most 

persuasive assessment of Mr. Boone’s whole person impairment because his apportionment took 

account of both Mr. Boone’s pre-existing condition and his compensable injury. The Office of 

Judges found that each of the three evaluators in the case applied the American Medical 

Association’s Guides and adjusted their recommendations to fit within Lumbar Category II of 

West Virginia Code of State Rules § 85-20-C. The Office of Judges found that the evaluators 

disagreed concerning the percentage of Mr. Boone’s impairment which related to his pre-existing 

degenerative condition. The Office of Judges did not rely on either Dr. Bailey’s or Dr. 

Guberman’s evaluations because it found that some apportionment should be made for Mr. 

Boone’s degenerative condition and his compensable injury. The Board of Review adopted the 

findings of the Office of Judges and affirmed its Order. 

On appeal, Mr. Boone challenges Dr. Mukkamala’s method of apportionment. Mr. Boone 

argues that Dr. Mukkamala should have apportioned for his pre-existing impairment prior to 

adjusting his rating from the American Medical Association’s Guides to fit within the range of 

impairment under Lumbar Category II of West Virginia Code of State Rules § 85-20-C. 

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

Judges. Mr. Boone has not demonstrated that he is entitled to a greater than 5% permanent partial 

disability award for his compensable injury. Dr. Mukkamala properly evaluated Mr. Boone’s 

disability under the American Medical Association’s Guides and West Virginia Code of State 

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Rules § 85-20-C. Dr. Mukkamala also properly apportioned Mr. Boone’s percentage of 

impairment between his compensable injury and his pre-existing degenerative condition. There is 

nothing in the records undermining the reliability of Dr. Mukkamala’s impairment rating. Dr. 

Mukkamala appropriately accounted for the impairment related to Mr. Boone’s compensable 

injury and his non-compensable condition. The Office of Judges was within its discretion in 

basing Mr. Boone’s permanent partial disability award on Dr. Mukkamala’s evaluation. 

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: June 11, 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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