1

 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

RUTH RICHARDS,

Claimant Below, Petitioner

vs.) No. 18-0619 (BOR Appeal No. 2052721)

(Claim No. 2017010065)

 

AMERICAN MEDICAL FACILITIES MANAGEMENT, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Ruth Richards, by William Gerwig III, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. American Medical Facilities 

Management, by Steven Wellman, its attorney, filed a timely response.

The issue on appeal is permanent partial disability. The claims administrator granted a 1% 

permanent partial disability award on March 22, 2017. The Office of Judges affirmed the decision 

in its March 14, 2018, Order. The Order was affirmed by the Board of Review on July 2, 2018.

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. 

Ms. Richards, a certified nursing assistant, was injured in the course of her employment on 

October 13, 2016, when she fell. A cervical CT scan the following day noted that it was performed 

due to Ms. Richards falling and hitting her head and neck the day before. The CT showed mild 

degenerative changes but no acute findings. The claim was held compensable for fracture of the 

right fibula, head injury, and cervical strain. 

Ms. Richards was treated by Frederick Pollock, M.D., and on December 27, 2016, he noted 

that she was there for follow up for her broken ankle. She had full range of motion in the ankle, 

and x-rays showed that the fibula fracture healed well. Dr. Pollack recommended two more weeks 

of physical therapy. On January 12, 2017, Dr. Pollock again noted full range of motion and 

FILED

April 25, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

recommended she continue physical therapy. In a February 3, 2017, treatment note, Aimee Gue, 

FNP-C, noted that Ms. Richards reported ankle pain since October. She stated that she had pain 

and swelling daily in her ankle. She had not been able to return to work. Ms. Gue prescribed a tall 

boot.

On March 17, 2017, Prasadarao Mukkamala, M.D., performed an independent medical 

evaluation in which he noted that Ms. Richards was released to return to work by Dr. Pollock but 

was still under the care of Dr. Knapp. He noted the compensable conditions as right fibula fracture, 

head injury, and cervical sprain. Dr. Mukkamala determined that Ms. Richards had reached 

maximum medical improvement. Using the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment (4th ed 1993), Dr. Mukkamala assessed 0% impairment for 

the head injury. He found 5% impairment for the cervical spine using range of motion. He placed 

Ms. Richards in Cervical Category I of West Virginia Code of State Rules § 85-20-

E (2006) which allows for 0% impairment and adjusted the assessment accordingly. Dr. 

Mukkamala found that Ms. Richards had mild limitation of hind foot range of motion. This 

amounted to 1% impairment for the right ankle. His total assessment was therefore 1% impairment. 

The claims administrator granted a 1% permanent partial disability award based on his assessment 

on March 22, 2017.

Ms. Richards was treated by James Thomas, M.D., on April 26, 2017. Dr. Thomas noted 

that she fractured her ankle in October of 2016. X-rays taken in March of 2017 showed good 

progressive healing. Ms. Richards reported a very low pain level with standing and walking and 

no pain on rest. She had full range of motion of the foot and ankle. Dr. Thomas stated that her 

ankle was completely healed. 

On June 8, 2017, Bruce Guberman, M.D., performed an independent medical evaluation 

in which he assessed 4% impairment for the right ankle for range of motion abnormalities. For the 

cervical spine, he placed Ms. Richards in Category IIB of Table 75 from the American Medical 

Association’s Guides for 4% impairment. Cervical range of motion showed 2% impairment. Dr. 

Guberman placed Ms. Richards in Cervical Category II from West Virginia Code of State Rules § 

85-20-E, which allows for 5-8% impairment. He therefore adjusted the cervical impairment to 8%. 

His total recommended impairment for the compensable injury was 12%. 

Marsha Bailey, M.D., performed an independent medical evaluation on November 7, 2017. 

She found that Ms. Richards had reached maximum medical improvement. For the cervical sprain, 

Dr. Bailey assessed 0% impairment. The cervical range of motion measurements were pain 

restricted and not valid. Dr. Bailey stated that Ms. Richards reported no neck pain at the time of 

the examination and only some soreness with certain motions. Dr. Bailey placed Ms. Richards in 

Cervical Category I from West Virginia Code of State Rules § 85-20-E for 0% impairment. Dr. 

Bailey stated that there are thirteen models within the American Medical Association’s Guides for 

rating lower extremity impairment but Ms. Richards is not eligible for an impairment under any 

of them. Her right ankle range of motion was normal, and Dr. Bailey assessed 0% impairment. She 

also found no impairment for the head injury. 
3

On March 14, 2018, the Office of Judges affirmed the claims administrator’s grant of a 1% 

permanent partial disability award. It found that there are three evaluations of record. Dr. 

Mukkamala found 1% impairment, Dr. Guberman found 12%, and Dr. Bailey found 0%. The 

Office of Judges found Dr. Guberman’s impairment assessment to be an outlier in regard to 

cervical impairment. Ms. Richards has not been treated for a cervical injury. Dr. Bailey found 0% 

cervical impairment but her range of motion measurements were invalid. The Office of Judges 

relied on Dr. Mukkamala’s assessment in which he found 0% cervical impairment. All three 

evaluators of record found 0% impairment for the compensable head injury. For the right ankle, 

Drs. Mukkamala and Guberman both found 1% range of motion impairment. Dr. Guberman also 

found additional impairment for plantar flexion and dorsiflexion. The Office of Judges found that 

Ms. Richards’s right ankle was determined to have normal range of motion by Dr. Pollock on 

January 12, 2017, and Dr. Thomas on April 26, 2017. The Office of Judges concluded that Dr. 

Guberman’s finding of 12% impairment was not supported by Ms. Richards’s treatment and other 

medical records. Dr. Baileys’ report was also found to be less credible because she did not find 

valid range of motion measurements. Dr. Mukkamala’s report and finding of 1% impairment was 

determined to be the most reliable of record. The Board of Review adopted the findings of fact 

and conclusions of law of the Office of Judges and affirmed its Order on July 2, 2018.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. The Office of Judges was not wrong to rely on Dr. Mukkamala’s 

report. Dr. Guberman’s report found impairment well beyond that of the other evaluators of record,

and his findings are not supported by the evidentiary record. Dr. Bailey’s report failed to find valid 

range of motion measurements. Dr. Mukkamala’s report was supported by the evidentiary record 

and is therefore the most reliable. 

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: April 25, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison