KGPCO, Inc. v. Michael Eden

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
KGPCO, INC., FILED
Employer below, Petitioner
April 10, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-246 (JCN: 2017003462) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MICHAEL EDEN,
Claimant below, Respondent

MEMORANDUM DECISION
Petitioner KGPCO, INC. (“KGPCO”) appeals the October 7, 2022, order of the
West Virginia Workers’ Compensation Board of Review (“BOR”). Respondent Michael
Eden (“Mr. Eden”) filed a timely response.1 Petitioner did not file a reply.
The issue on appeal is whether the BOR erred in reversing the claim administrator’s
order and granting Mr. Eden an additional seventeen percent (17%) permanent partial
disability (“PPD”) award, increasing his initial ten percent (10%) PPD award to twenty-
seven percent (27%) whole person impairment. KGPCO now appeals the OOJ’s order.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ briefs, the record on appeal, the oral arguments
of counsel and the applicable law, this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the BOR’s October
7, 2022, order is appropriate under Rule 21 of the West Virginia Rules of Appellate
Procedure.
Mr. Eden worked as a warehouse employee for KGPCO. On June 18, 2020, Mr.
Eden was injured at work when a large roll of metal cable, weighing approximately one
thousand (1,000) pounds rolled down a ramp and struck him. Mr. Eden treated at Princeton
Community Hospital, where he underwent a complex debridement surgery and closure of
a wound on his right lower extremity. On July 10, 2020, Mr. Eden underwent a second
surgery to perform skin grafts on the medial and lateral aspects of his right lower extremity
encompassing a 111 cm2 region, with the donor tissue taken from his right thigh. The claim
administrator held the claim compensable for cervical strain, left shoulder strain, and right
leg laceration.
On March 10, 2021, Mr. Eden underwent an independent medical evaluation
(“IME”) performed by Joseph E. Grady II, M.D. Dr. Grady determined that Mr. Eden
sustained a crushing injury and laceration of right lower extremity with some residual
scarring, cervical sprain superimposed upon preexisting multilevel degenerative cervical
1
KGPCO, Inc. is represented by Daniel G. Murdock, Esq. Mr. Eden is represented
by Lori J. Withrow, Esq.
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spondylosis, and left shoulder strain with chronic arthritic changes and age indeterminate
labral tear on MRI. Dr. Grady opined that Mr. Eden would have difficulty returning to
work at full duty given the injuries to his right lower leg, neck, and left shoulder. Using the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993) (the “AMA Guides”), Dr. Grady assigned Mr. Eden three percent (3%) whole
person impairment (“WPI”) for his cervical spine and two percent (2%) WPI for his left
shoulder. Regarding the injury to Mr. Eden’s leg, Dr. Grady found three percent (3%) WPI
due to loss of range of motion in the area. For scarring, Dr. Grady placed Mr. Eden in Class
I2 of Table 2 on page 280 of the Guides, recommending two percent (2%) WPI. In sum,
Dr. Grady recommended a total of ten percent (10%) WPI. On March 19, 2021, the claim
administrator granted Mr. Eden a ten percent (10%) PPD award based on Dr. Grady’s
recommendation. Mr. Eden timely protested.
On August 18, 2021, Mr. Eden underwent a second IME performed by Michael J.
Kominsky, D.C. Using the AMA Guides, Dr. Kominsky recommended six percent (6%)
WPI for Mr. Eden’s cervical spine, four percent (4%) WPI for the left shoulder, and five
percent (5%) WPI due to loss of range of motion in the right lower leg. Regarding scarring
of the leg, Dr. Kominsky noted that Mr. Eden had significant scarring with subcutaneous
loss and deformity of the medial calf. He further noted loss of skin pigmentation; disfigured
and altered appearance; and lessened sensation. Dr. Kominsky placed Mr. Eden in Class
II3 of Table 2 on page 280 of the AMA Guides, finding he required intermittent treatments
such as pain medication, anti-inflammatories, and nerve medication. As such, Dr.
Kominsky recommended seventeen percent (17%) WPI for the scarring. In sum, Dr.
Kominsky recommended twenty-nine percent (29%) WPI due to the compensable injury.
On September 1, 2021, Mr. Eden underwent a third IME, which was performed by
Robert B. Walker, M.D. Using the AMA Guides, Dr. Walker recommended six percent
(6%) WPI for the cervical spine and five percent (5%) WPI for the shoulder. Regarding the
right lower leg, Dr. Walker also placed Mr. Eden in Class II of Table 2 on page 280 of the
AMA Guides. Dr. Walker noted that Mr. Eden suffered from limitations in activities of
daily living and function, significant cosmetic deformity, symptoms, and the requirement

2
Class I sets forth the following requirements: (1) the “[s]igns and symptoms of
skin disorder are present or only intermittently present” and (2) “[t]here is no limitation or
limitation in the performance of a few activities of daily living, although exposure to certain
chemical or physical agents might increase limitation temporarily,” and (3) “[n]o treatment
or intermittent treatment is required.” A Class I skin disorder has an impairment range of
0% - 9%.
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Class II sets forth the following requirements: (1) “[s]igns and symptoms of skin
disorder are present or only intermittently present,” and (2) “[t]here is limitation in the
performance of some of the activities of daily living,” and (3) “[i]ntermittent to constant
treatment may be required.” A Class II skin disorder has an impairment range of 10% -
24%.
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of daily care such as skin lubricants and sunscreen. As such, Dr. Walker recommended
fifteen percent (15%) WPI for the scarring. Lastly, Dr. Walker recommended four percent
(4%) WPI for loss of range of motion in the right leg/ankle. In total, Dr. Walker
recommended twenty-seven percent (27%) WPI attributable to the compensable injuries.4
On April 5, 2022, Mr. Eden underwent a fourth and final IME which was performed
by Marsha Bailey, M.D. Dr. Bailey recommended zero percent (0%) WPI for Mr. Eden’s
cervical spine, left shoulder, and right lower leg. Regarding scarring, Dr. Bailey placed Mr.
Eden into Class 1 of Table 2 on page 280 of the AMA Guides, finding that he had no
limitation in the performance of activities of daily living and required no intermittent
treatment. As such, Dr. Bailey recommended five percent (5%) WPI for Mr. Eden’s
scarring, which was her total recommendation.
By order dated October 7, 2022, the BOR reversed the claim administrator’s order
granting Mr. Eden a ten percent (10%) PPD award and, instead, granted him a twenty-
seven percent (27%) PPD award based upon Dr. Walker’s recommendation. In reaching
its conclusion, the BOR disregarded Dr. Bailey’s IME report, noting she attributed Mr.
Eden’s cervical strain, left shoulder strain, and right leg laceration to preexisting conditions
and that her report was not credible. The BOR reasoned that the greatest disagreement
between the other three evaluators involved placement of Mr. Eden in either Class I or
Class II of Table 2 of the AMA Guides for the purposes of determining WPI for his
scarring. The BOR determined that Mr. Eden more aptly fit into Class II as his activities
of daily life had been substantially reduced by his compensable injury. The BOR noted that
Mr. Eden required treatments, such as ointments and sunscreen, to prevent further damage
to his leg. As such, the BOR found that placement of Mr. Eden into Class II was supported
by the medical evidence. It is from the BOR’s October 7, 2022, decision that KGPCO now
appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of
Review;
(3) Made upon unlawful procedures;

4
We note that Dr. Walker’s report contained a one percent (1%) mathematical error;
however, this error was not set forth as an assignment of error by KGPCO and, therefore,
was waived. See Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 307, 284 S.E.2d 374, 376
(1981).
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(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.
Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, ____ W. Va. ____, ____, 882 S.E. 2d
916, 921, 2022 WL 17546598, at *4 (W. Va. Ct. App. 2022).
On appeal, KGPCO argues that the BOR erred in reversing the claim administrator’s
order and granting Mr. Eden an additional seventeen percent (17%) PPD award based upon
Dr. Walker’s recommendation. Specifically, KGPCO avers that Dr. Walker and Dr.
Kominsky erred in determining that Mr. Eden’s scarring on his right calf interferes with
any of his daily activities of living and requires ongoing treatment. After a review of the
record, we disagree and find no error. Based on the record, the BOR was not clearly wrong
in reversing the claim administrator’s ten percent (10%) PPD award and increasing the
PPD award to twenty-seven percent (27%).
As referenced above, Mr. Eden was placed into Class II of Table 2 on page 280 of
the AMA Guides by two physicians, both of whom opined that his skin grafting and
scarring limited his performance of some activities of daily living and required treatment,
such as ointments and sunscreen, to prevent additional damage. While Dr. Grady and Dr.
Bailey maintained contrary positions, the mere existence of differing opinions does not
foreclose the BOR, as the undisputed trier of fact, from making its own determination as
to the reliability and credibility of each of the IME reports.5 Drs. Grady, Kominsky and
Walker, all opined that Mr. Eden’s right leg scarring continues to restrict his ability to
perform certain life activities.6 Further, the AMA Guides do not distinguish between
curative, palliative, and preventative treatments, when referencing the classes contained in
Table 2 on page 280. Therefore, the BOR’s reliance on treatments advanced by Drs.
Kominsky and Walker was not misplaced and cannot be characterized as erroneous.
In reviewing decisions by administrative agencies, “[T]he plainly wrong standard
of review is a deferential one, which presumes an administrative tribunal's actions are valid
as long as the decision is supported by substantial evidence.” Duff v. Kanawha Cnty.
Comm’n, No. 22-ICA-10, ____ W. Va. ____, ____, 882 S.E. 2d 916, 921, 2022 WL

5
We note the language contained in Class I and Class II of Table 2 on page 280 has
overlapping criteria; and it is entirely possible for a claimant to be considered in both
classes, or neither. Placement of a claimant in one of the classes is a factually driven
determination to be made by the reviewing physician. The BOR reliance on physician’s
opinion is entitled to substantial deference when supported by evidence on the record.
6
While the BOR’s order may not be a model example in establishing the application
of factual findings to their conclusions of law, the BOR’s determination is clearly
supported by the evidence of record.
4
17546598, at *11 (W. Va. Ct. App. 2022)(citing Syl Pt. 3, In Re Queen, 196 W.Va. 442,
473 S.E. 2d 483 (1996)). “This Court will not reverse a finding of fact made by the
Workmen's Compensation Appeal Board unless it appears from the proof upon which the
appeal board acted that the finding is plainly wrong.” Plummer v. Workers Comp. Div.,
209 W. Va. 710, 712, 551 S.E.2d 46, 48 (2001)(citing Syl. Pt., Rushman v. Lewis, 173
W.Va. 149, 313 S.E.2d 426 (1984)). Here, the BOR’s determination that Mr. Eden’s
scarring fit appropriately within the requirements of Class II of Table 2 on page 280 of the
AMA Guides was supported by substantial evidence and is not clearly wrong.
Accordingly, we affirm the BOR’s October 7, 2022, order.
Affirmed.
ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr

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