STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

February 4, 2016 

RORY L. PERRY II, CLERK 

CECIL R. EVANS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 15-0244 (BOR Appeal No. 2049844) 

(Claim No. 2010113413) 

BRADLEY PUBLIC SERVICE DISTRICT, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Cecil R. Evans, by Stephen P. New, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Bradley Public Service District, by 

Alyssa A. Sloan, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 24, 2015, in 

which the Board affirmed an August 28, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges modified the claims administrator’s July 8, 2013, 

decision granting Mr. Evans a 6% permanent partial disability award. The Office of Judges 

modified the decision to state that Mr. Evans was granted an additional 6% award above the 10% 

award already granted for a total permanent partial disability award in the claim of 16%. 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. Evans, a waste water treatment plant worker, was injured in the course of his 

employment on November 6, 2009, when he was involved in an automobile accident. The claim 

was held compensable for contusion of the face, scalp, and neck as well as closed fracture of the 

astragalus. On April 7, 2010, Joseph Grady, M.D., performed an independent medical evaluation 

in which he diagnosed cervical myofascial strain, resolved facial contusion, and history of 

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fracture of the right ankle. He found that Mr. Evans had reached maximum medical improvement 

for the compensable conditions. Using the American Medical Association’s Guides to the 

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

contusions, 3% impairment for the right ankle, and 0% impairment for the cervical sprain.1 In a 

second independent medical evaluation in November of 2010, Dr. Grady diagnosed healed right 

talus fracture; left shoulder strain with labral and rotator cuff tears; and resolved contusions of 

the face, scalp, and neck. He noted that Mr. Evans reported cervical discomfort; however, Dr. 

Grady found no signs of definite radiculopathy. Dr. Grady determined that Mr. Evans needed 

shoulder surgery and that he was therefore not at maximum medical improvement for the 

condition. It was noted that if he elected not to undergo surgery, he would be at maximum 

medical improvement. Dr. Grady assessed 3% whole person impairment for the right ankle. On 

July 12, 2011, Dr. Grady found that Mr. Evans had reached maximum medical improvement and 

assessed 7% left shoulder impairment. The claims administrator granted Mr. Evans a 10% 

permanent partial disability award representing 3% for the right ankle and 7% for the left 

shoulder on July 29, 2011. 

Rebecca Thaxton, M.D., performed two physician reviews in this case regarding the 

cervical spine. In November of 2010, she recommended that cervical spondylosis without 

myelopathy and displacement of intervertebral disc without myelopathy not be added to the 

claim. She noted that Randall Short, D.O., arrived at the same conclusion in his physician 

review. She stated that an MRI taken six months before the compensable injury showed 

spondylotic disc protrusions at C5-6 and C6-7, and an EMG of the upper extremities was normal. 

Dr. Thaxton stated that spondylosis is a non-specific diagnosis that often refers to degenerative 

disc disease. In December of 2010, Dr. Thaxton recommended that a repeat cervical MRI be 

denied. She determined that while the MRI was necessary, it was not related to the compensable 

claim. She found that prior to the compensable injury, Mr. Evans had degenerative changes of 

his spine and a herniated disc. She concluded that an MRI taken in November of 2010 would not 

be reflective of changes due to a November of 2011 injury, especially given that an interim scan 

was taken. The changes seen on the new MRI scan were found to not be the result of the 

compensable injury. 

Robert Walker, M.D., performed an independent medical evaluation on March 5, 2013, in 

which he noted that Mr. Evans sustained a cervical spine sprain, left shoulder rotator cuff tear, 

and a fracture of the talus of the right ankle as a result of the compensable injury. Dr. Walker 

assessed 12% cervical spine impairment using the American Medical Association’s Guides. He 

placed Mr. Evans in Cervical Category II of West Virginia Code of State Rules § 85-20-C (2006) 

and adjusted the rating to 8%. He assessed 9% whole person impairment for the left shoulder and 

7% whole person impairment for the right ankle which he combined for a total impairment rating 

of 19%. Dr. Grady performed a final independent medical evaluation on June 26, 2013, in which 

he assessed 0% impairment for the neck, face, and scalp contusions; 4% impairment for the right 

foot; and 12% impairment for the left shoulder for a total assessment of 16% impairment. 

1 Dr. Grady mistakenly included the cervical condition in his assessment. The condition has not been found to be a 

compensable component of the claim. 

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On July 8, 2012, the claims administrator granted Mr. Evans a 6% permanent partial 

disability award. The Office of Judges modified the decision in its August 28, 2014, Order to 

state that Mr. Evans was granted an additional 6% award above the 10% award he was 

previously granted. The Office of Judges found that there is no cervical spine condition that is 

compensable in the claim, and Mr. Evans therefore cannot receive a permanent partial disability 

award for the cervical spine. The Office of Judges further found that the recommendations of 

Drs. Walker and Grady are nearly the same when the combined values chart of the American 

Medical Association’s Guides is properly used. Dr. Grady found 4% right ankle impairment and 

12% left shoulder impairment for a combined rating of 16% whole person impairment. Dr. 

Walker found 9% impairment for the left shoulder and 7% for the right ankle for a combined 

rating of 15% whole person impairment. Because Dr. Grady’s evaluation was the last in time, it 

was found to be the most credible assessment of Mr. Evans’s impairment. The Office of Judges 

therefore concluded that he was entitled to a total of 16% permanent partial disability. Since he 

was previously granted a 10% award, he was found to be entitled to an additional 6% award. The 

Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and 

affirmed its Order on February 24, 2015. 

On appeal, Mr. Evans argues that he is entitled to an additional permanent partial 

disability award based on Dr. Walker’s evaluation. He asserts that Dr. Walker correctly 

evaluated him for a cervical spine condition and that the Office of Judges incorrectly determined 

that the cervical spine is not compensable. Bradley Public Service District argues that the 

cervical spine has clearly been found to not be a compensable condition in the claim. It asserts 

that the claims administrator specifically denied the addition of cervical conditions to the claim 

and the decision was affirmed by the Office of Judges.2 

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

the Board of Review. The cervical spine is not a compensable condition in the claim, and Mr. 

Evans therefore cannot be granted a permanent partial disability award for a cervical spine 

condition. The Office of Judges was within its discretion in finding that Dr. Grady’s independent 

medical evaluation was the most reliable of record, and the Board of Review was correct to 

affirm the Order. The evidence indicates that Mr. Evans sustained 16% impairment as a result of 

the compensable injury. 

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. 

2 On January 11, 2011, the claims administrator denied the addition of cervical spondylosis without myelopathy and 

displacement of intervertebral disc without myelopathy to the claim. The decision was affirmed by the Office of 

Judges on June 27, 2011. There is no evidence in the record that Mr. Evans protested the Office of Judges’ Order. 

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ISSUED: February 4, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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