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 STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

Bundy Auger Mining, Inc.,

Employer Below, Petitioner

vs.) No. 21-0854 (BOR Appeal No. 2056530)

(Claim No. 2019005611)

 

Kevin Owens, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Bundy Auger Mining, Inc., appeals the decision of the West Virginia Workers’ 

Compensation Board of Review (“Board of Review”). Kevin Owens filed a timely response.1 The 

issue on appeal is permanent partial disability. The claims administrator granted a 4% permanent 

partial disability award on June 28, 2019. The Workers’ Compensation Office of Judges (“Office 

of Judges”) affirmed the decision in its March 19, 2021, Order. The Order was reversed by the 

Board of Review on September 23, 2021, which instead granted an 8% permanent partial disability 

award. Upon our review, we determine that oral argument is unnecessary and that a memorandum 

decision affirming the Board of Review’s decision is appropriate. See W. Va. R. App. P. 21. 

Mr. Owens, an electrician, injured his lower back on September 5, 2018, in the course of

his employment. The claim was held compensable for lumbar sprain on September 19, 2018. 

Lumbosacral radiculopathy, thoracic spine pain, cervicothoracic radiculopathy, and muscle 

spasms were denied as compensable conditions.

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Mr. Owens underwent two independent medical evaluations to determine his permanent 

impairment. On June 6, 2019, David Soulsby, M.D., assessed 7% impairment from Table 75 of 

the American Medical Association’s Guide to the Evaluation of Impairment, (4th ed. 1993) and

20% for range of motion loss. He then placed Mr. Owens in Lumbar Category II from West 

Virginia Code of State Rules § 85-20-C and adjusted the rating to 8%. Dr. Soulsby then 

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Petitioner, Bundy Auger Mining, Inc., is represented by Lisa Warner Hunter, and 

respondent, Kevin Owens, is represented by Reginald D. Henry.

2

On April 18, 2019, and April 24, 2019, the claims administrator denied Mr. Owens’s 

requests for thoracic spine treatment and denied the addition of lumbosacral radiculopathy, 

thoracic spine pain, cervicothoracic radiculopathy, and muscle spasm to the claim. The Office of 

Judges affirmed the claims administrator’s decisions on January 17, 2020.

FILED

September 14, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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apportioned half of the impairment for preexisting significant degenerative disc disease and 

assessed 4% whole person impairment for the compensable injury.3

Michael Kominsky, D.C., performed an independent medical evaluation on June 10, 2020. 

He found 5% impairment from Table 75 of the AMA Guides and 5% impairment for range of 

motion loss for a total of 10% lumbar spine impairment. Dr. Kominsky placed Mr. Owens in 

Lumbar Category II from West Virginia Code of State Rules § 85-20-C and adjusted the rating to 

8%. Dr. Kominsky declined to apportion his impairment rating. 

In an October 9, 2020, addendum, Dr. Soulsby stated that he disagreed with Dr. 

Kominsky’s finding that 100% of Mr. Owens’s impairment was the result of the work injury. Dr. 

Soulsby noted that Mr. Owens had x-rays and an MRI showing severe degenerative disc disease 

and spinal stenosis shortly after the injury occurred.4 He explained that such changes are the result

of degenerative processes which take many years to progress to the level seen in Mr. Owens’s 

diagnostic images. Dr. Soulsby asserted that it is not possible that the conditions developed as a 

result of the September 6, 2018, work injury. Further, because the conditions affect range of 

motion, apportionment is required. 

The Office of Judges affirmed the claims administrator’s grant of a 4% permanent partial 

disability award. It found that Dr. Soulsby’s opinion and impairment findings were entitled to more 

evidentiary weight than those of Dr. Kominsky. The Office of Judges relied on Dr. Soulsby’s 

addendum in which he explained that Mr. Owens’s degenerative changes were severe enough to 

cause range of motion restrictions and, therefore, require apportionment. 

The Board of Review reversed the Office of Judges’ order and instead granted Mr. Owens

an 8% permanent partial disability award. It found that there was no evidence of range of motion

impairment prior to the compensable injury and no evidence that Mr. Owens had difficulty 

performing his work or daily activities. The Board of Review found that Mr. Owens suffered a 

back injury approximately thirty years prior, received conservative treatment, and returned to work 

within two months. It found no evidence that Mr. Owens suffered any permanent impairment from 

the injury. The Board of Review concluded that Dr. Soulsby’s apportionment of half of Mr. 

Owens’s impairment for preexisting degenerative changes was not supported by the record. It 

therefore granted Mr. Owens an 8% permanent partial disability award.

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Permanent partial disability shall be awarded only in the amount that would have been 

allowable had the employee not had the pre-existing impairment. West Virginia Code § 23-4-9b.

Therefore, when a claimant has preexisting, nonrelated impairment, that impairment must be 

subtracted from the total impairment assessed. 

4

On September 11, 2018, a lumbar x-ray showed multilevel lumbar degenerative disc and 

joint disease. An October 25, 2018, lumbar MRI showed severe stenosis at L4-5 with bilateral 

foraminal encroachment, moderate stenosis at L5-S1 with bilateral foraminal encroachment and 

disc extrusion, degenerative disc disease and bulging at L3-4 with mild encroachment. At T10-11 

and T11-12, there was degenerative disc and joint disease. 
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This Court may not reweigh the evidentiary record, but must give deference to the findings, 

reasoning, and conclusions of the Board of Review, and when the Board’s decision effectively 

represents a reversal of a prior order of either the Workers’ Compensation Commission or the 

Office of Judges, we may reverse or modify that decision only if it is in clear violation of 

constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so 

clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor 

of the Board’s findings, reasoning, and conclusions, there is insufficient support to sustain the 

decision. See W. Va. Code § 23-5-15(c) & (e). We apply a de novo standard of review to questions 

of law. See Justice v. W. Va. Off. Ins. Comm’n, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012).

After review, we agree with the reasoning and conclusions of the Board of Review. Though 

the claimant had a prior back injury, such injury was thirty years prior to the compensable injury 

and the claimant recovered from that injury after conservative treatment. There is no evidence that 

he suffered from any symptoms prior to the compensable injury. Therefore, the Board of Review 

committed no error in finding Dr. Soulsby’s apportionment of half of the impairment to be 

unsupported by the record.

 Affirmed.

ISSUED: September 14, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton 

Justice C. Haley Bunn