STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

September 18, 2014 

RORY L. PERRY II, CLERK 

CHAD E. DANIELS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0599	 (BOR Appeal No. 2047927) 

(Claim No. 2008011852) 

ROCKHOUSE CREEK DEVELOPMENT, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Chad E. Daniels, by John Blair, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. Rockhouse Creek Development, LLC, by 

Steven Wellman, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 20, 2013, in which 

the Board affirmed a November 19, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 13, 2011, 

decision granting Mr. Daniels a 7% 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. Daniels injured his lower back on September 5, 2007, while carrying fire 

extinguishers. The claim was held compensable, and he received a 13% permanent partial 

disability award for his compensable injury. Following the initial permanent partial disability 

award, Brett Osborn, D.O., performed an L5-S1 laminectomy and discectomy, placed PEEK 

cages at L5-S1, and placed pedicle screws at L5-S1 on January 26, 2010. 

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On November 2, 2010, Prasadarao Mukkamala, M.D., performed an independent medical 

evaluation and after placing Mr. Daniels in lumbar category IV of West Virginia Code of State 

Rules § 85-20-Table C (2006), found that Mr. Daniels sustained 20% whole person impairment 

as a result of the September 5, 2007, injury. On January 13, 2011, the claims administrator 

granted Mr. Daniels an additional 7% permanent partial disability award based on Dr. 

Mukkamala’s independent medical evaluation. 

Bruce Guberman, M.D., performed an independent medical evaluation on August 16, 

2011. He determined that radiculopathy, muscle atrophy, and a loss of reflexes were present in 

Mr. Daniels’s left lower extremity, and therefore placed him in lumbar category V of West 

Virginia Code of State Rules § 85-20-Table C. He then opined that Mr. Daniels sustained 25% 

whole person impairment as a result of the September 5, 2007, injury. Paul Bachwitt, M.D., 

performed an independent medical evaluation on June 29, 2012. He placed Mr. Daniels in 

lumbar category IV of West Virginia Code of State Rules § 85-20-Table C and found that Mr. 

Daniels sustained 20% whole person impairment as a result of the September 5, 2007, injury. He 

opined that Dr. Guberman improperly placed Mr. Daniels in lumbar category V of West Virginia 

Code of State Rules § 85-20-Table C, and stated that at the time of his examination there was no 

evidence of radiculopathy or muscle atrophy. 

In its Order affirming the January 13, 2011, claims administrator’s decision, the Office of 

Judges held that the claims administrator properly granted Mr. Daniels a 7% permanent partial 

disability award. Mr. Daniels disputes this finding and asserts that he is entitled to a 25% 

permanent partial disability award for the injuries sustained on September 5, 2007, per the 

opinion of Dr. Guberman. 

The Office of Judges found that Dr. Guberman is the only physician of record to find 

atrophy or loss of reflexes in the lower extremities, as well as the only physician to find evidence 

of radiculopathy. The Office of Judges noted that the evidentiary record contains numerous 

reports from Mr. Daniels’s treating physicians, including his surgeon, and found that none of 

these reports indicate that muscle atrophy or reflex diminishment is present in the lower 

extremities. The Office of Judges then found that Dr. Guberman’s placement of Mr. Daniels in 

lumbar category V of West Virginia Code of State Rules § 85-20-Table C is not well supported 

by the evidence of record. Therefore, the Office of Judges found that Dr. Mukkamala’s and Dr. 

Bachwitt’s reports placing Mr. Daniels in lumbar category IV of West Virginia Code of State 

Rules § 85-20-Table C are more persuasive than the report of Dr. Guberman. The Board of 

Review reached the same reasoned conclusions in its decision of May 20, 2013. We agree with 

the reasoning and conclusions of the Board of Review. 

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. 

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Affirmed. 

ISSUED: September 18, 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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