STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 4, 2015 

RORY L. PERRY II, CLERK 

CLEDITH N. KINCAID, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-1226 (BOR Appeal No. 2049463) 

(Claim No. 2006018357) 

ALCON, LLC,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Cledith N. Kincaid, by Robert L. Stultz, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Alcon, LLC, by Alyssa A. Sloan, 

its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated October 27, 2014, in 

which the Board affirmed a May 8, 2014, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s January 16, 2013, decision 

granting Mr. Kincaid a 20% 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. Kincaid worked for Alcon, LLC, and was injured on November 10, 2005. He was 

climbing down from a truck and holding on to a handle for support when the handle broke and 

caused him to fall. The claim was held compensable for numerous conditions.1 On January 1, 

2013, the claims administrator granted Mr. Kincaid a 20% permanent partial disability award, 

1 The evidentiary record does not clearly list what conditions are compensable. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and on appeal, he is requesting a 57% permanent partial disability award. Mr. Kincaid underwent 

three independent medical evaluations. First, Joseph E. Grady, M.D., evaluated Mr. Kincaid and 

recommended 8% impairment for the cervical spine, 0% impairment for the thoracic spine, and 

13% impairment for the lumbar spine for a total of a 19% permanent partial disability award. 

However, Dr. Grady subsequently submitted a letter that stated when using the Combined Values 

Chart of the American Medical Association’s Guides to the Evaluation of Permanent 

Impairment, (4th ed. 1993) his impairment recommendation should be a 20% permanent partial 

disability award instead of the 19% he initially recommended. Second, Joseph A. Snead, M.D., 

found 13% lumbar spine impairment, 16% cervical spine impairment, and 40% impairment for 

neurological deficits and combined these for a total of 57% whole person impairment. Third, 

Christopher Martin, M.D., opined that the medical evidence does not support that an injuryrelated impairment exists in this case and concluded that the 20% already awarded was grossly in 

excess of what should in fact be 0% impairment for this minor trauma. 

The Office of Judges affirmed the claims administrator’s decision and found that the 

record establishes a credible, preponderant evidentiary foundation that Mr. Kincaid has incurred 

a 20% permanent partial disability award due to the injury of November 10, 2005. The Board of 

Review affirmed the Order of the Office of Judges. On appeal, Mr. Kincaid disagrees and asserts 

that the Board of Review erred in failing to grant him a 57% permanent partial disability award 

based upon the report of Dr. Snead. Alcon, LLC, maintains that Mr. Kincaid was properly 

awarded a 20% permanent partial disability based on the independent medical evaluation of Dr. 

Grady. 

The Office of Judges found that Dr. Grady’s report is the most credible report on the 

issue of Mr. Kincaid’s permanent partial disability award. It concluded that Dr. Snead’s report 

was inappropriately inflated. The portion of Dr. Snead’s report providing an impairment rating 

for a neurological deficit improperly combined an impairment rating obtained using the 

diagnosis related estimate method from Table 73 of the American Medical Association Guides 

with West Virginia Code of State Rules § 85-20-Table C (2006) in violation of West Virginia 

Code of State Rules § 85-20-64.1 (2006), which states that all permanent partial disability 

assessments shall be determined utilizing the range of motion method contained in the AMA 

Guides 4th Edition in conjunction with West Virginia Code of State Rules § 85-20. The Office 

of Judges also concluded that Dr. Martin’s apparent skepticism concerning the severity of the 

injury and the compensable components detract from affording his narrative any determinative, 

evidentiary weight. Therefore, the Office of Judges stated that Dr. Grady’s impairment 

recommendation was the sole, credible report on this issue and affirmed the claims 

administrator’s grant of 20% permanent partial disability award. The Board of Review agreed 

with the findings and conclusions of the Office of Judges. 

This Court agrees with the findings and conclusions of the Board of Review. The Office 

of Judges correctly discredited Dr. Snead’s report for improperly combining a rating using the 

diagnosis related estimate method from Table 73 of the AMA Guides with West Virginia Code 

of State Rules § 85-20-Table C. Dr. Snead’s impairment recommendation method violates West 

Virginia Code of State Rules § 85-20-64.1. In addition, this Court has invalidated the use of the 

diagnosis related estimate method in Repass v. Workers’ Compensation Division, 212 W.Va. 86, 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

569 S.E.2d 162 (2002). Dr. Snead is the only physician who found Mr. Kincaid to have a 

neurological deficit. Dr. Snead further found that Mr. Kincaid is almost a paraplegic and 

recommended 40% impairment for neurological difficulty which is rather high especially when 

the other physicians found no impairment recommendation for neurological deficit. Dr. Martin 

noted in his report that Mr. Kincaid was not almost paraplegic and in fact even drove himself to 

the visit. The Office of Judges also correctly discredited Dr. Martin’s report because of his 

skepticism concerning the severity of the injury and the compensable conditions. In addition, Dr. 

Martin classified Mr. Kincaid’s injury as minor trauma but in fact Mr. Kincaid’s injury resulted 

in many compensable conditions one of which resulted in a right L4-5 hemilaminectomy, 

foraminotomy, and microdiscectomy on August 26, 2011. Therefore based on Dr. Grady’s report 

which is the only credible report in evidence, Mr. Kincaid was correctly awarded a 20% 

permanent partial disability award. 

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: November 4, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

3