STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 5, 2016 

RORY L. PERRY II, CLERK 

LITA M. MOORE, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 15-0496 (BOR Appeal No. 2050300) 

(Claim No. 2014003079) 

HARRELL MEMORIAL NURSING HOME, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Lita M. Moore, by William B. Gerwig III, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Harrell Memorial Nursing Home, 

Inc., by Bradley A. Crouser, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 19, 2015, in which 

the Board affirmed a March 11, 2015, Order of the Workers’ Compensation Office of Judges. In 

its Order, the Office of Judges affirmed the claims administrator’s February 6, 2014, decision 

granting Ms. Moore a 5% 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. 

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

July 29, 2013, when she was attacked by a combative patient. The claim was held compensable 

for thoracic sprain/strain and left shoulder sprain/strain. On October 23, 2013, Prasadarao 

Mukkamala, M.D., performed an independent medical evaluation in which he noted the 

compensable conditions as thoracic strain and shoulder contusion. He stated that Ms. Moore 

reported pain in her right shoulder and mid-back as well as numbness in her right arm. Dr. 

Mukkamala opined that she had reached maximum medical improvement. Using the American 

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Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. 

Mukkamala assessed 3% right shoulder impairment. He also found 4% thoracic spine 

impairment. He placed Ms. Moore in Category II-B of West Virginia Code of State Rules § 85­

20-D (2006) and adjusted the rating to 5%. His total combined recommendation for the 

compensable injury was 8% impairment. The claims administrator thereafter granted Ms. Moore 

a 5% permanent partial disability award on February 6, 2014. The decision noted that the award 

was based on Dr. Mukkamala’s evaluation; however, the right shoulder was rated in error. The 

claim administrator clarified that Dr. Mukkamala found no limitations for the left shoulder. 

In a subsequent independent medical evaluation, Bruce Guberman, M.D., diagnosed posttraumatic, acute, and chronic thoracic spine strain as well as chronic post-traumatic strain of the 

right shoulder following a contusion. He found 6% impairment for the thoracic spine using the 

American Medical Association’s Guides. He then placed Ms. Moore in Category II of West 

Virginia Code of State Rules § 85-20-D and found that his rating did not require adjustment. For 

the right shoulder, he found 4% impairment for a combined 10% whole person impairment. 

Because Ms. Moore already received a 5% award, Dr. Guberman recommended an additional 

5% award. 

Saghir Mir, M.D., performed an independent medical evaluation on October 27, 2014, in 

which he diagnosed a sprain at the mid and lower thoracic spine. He noted that both Drs. 

Guberman and Mukkamala calculated impairment for the right shoulder even though it was not a 

compensable part of the claim. Dr. Mir assessed 5% impairment using the American Medical 

Association’s Guides. He then placed Ms. Moore in Category II of West Virginia Code of State 

Rules § 85-20-D and found that his rating did not require adjustment. Dr. Mir noted that he 

examined the right shoulder and stated that if it became a compensable condition, he would 

provide a rating using his measurements. On January 26, 2015, the claims administrator issued a 

corrected decision in which it stated that the claim was compensable for thoracic sprain/strain, 

right shoulder sprain/strain, and left shoulder human bite. Because the right shoulder was added 

to the claim, Ms. Moore was granted an additional 3% permanent partial disability award based 

off of Dr. Mukkamala’s report. Shortly thereafter, Dr. Mir stated in an addendum report that he 

reviewed his prior evaluation and used his right shoulder findings to calculate Ms. Moore’s 

impairment. He found 3% right shoulder impairment and opined that Dr. Guberman’s findings 

showed excessive restriction of mobility of the right shoulder as compared to himself and Dr. 

Mukkamala. 

The Office of Judges affirmed the claims administrator’s February 6, 2014, decision in its 

March 11, 2015, Order. It determined that while all three evaluating physicians of record placed 

Ms. Moore in Thoracic Category II of West Virginia Code of State Rules § 85-20-D, they arrived 

at different range of motion impairments. Dr. Mukkamala’s report was determined to be out of 

accord with the other physicians of record. Where Drs. Guberman and Mir found flexion deficit, 

Dr. Mukkamala did not. The Office of Judges also found that Dr. Guberman’s report was not in 

accord with the other physicians of record. Dr. Guberman found 2% impairment for left rotation 

range of motion deficit but Drs. Mir and Mukkamala both found 1% impairment. The Office of 

Judges ultimately concluded that Dr. Mir’s report was the most reliable and the most in accord 

with the other evidence of record. Like Dr. Guberman, Dr. Mir found range of motion deficit for 

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flexion and, like Dr. Mukkamala, he found 1% range of motion deficit for left rotation. The 

Office of Judges therefore held that Ms. Moore was entitled to no more than a 5% permanent 

partial disability award. The Board of Review adopted the findings of fact and conclusions of 

law of the Office of Judges and affirmed its Order in its May 19, 2015, decision. 

On appeal, Ms. Moore argues that Dr. Guberman’s report was incorrectly found to be 

unreliable simply because his findings differed slightly from the other evaluators of record. 

Harrell Memorial Nursing Home, Inc., asserts that the first and last evaluators of record both 

found 5% impairment. It argues that Dr. Guberman’s range of motion measurements in the 

thoracic spine and shoulder could not be duplicated by either of the other physicians of record. It 

finally argues that Dr. Mir is an orthopedic specialist and, as such, his opinion should be given 

the greatest weight. 

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

the Board of Review. Dr. Mir’s report is supported by the evidentiary record, and the Office of 

Judges provided adequate reasoning for its decision. Ms. Moore is entitled to no more than a 5% 

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: May 5, 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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