ACNR Resources, Inc. v. Patrick Martie

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ACNR RESOURCES, INC., May 22, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-9 (JCN: 2020014490)

PATRICK MARTIE,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ACNR Resources, Inc.1 (“ACNR”) appeals the December 13, 2022, order
of the Workers’ Compensation Board of Review (“Board”). Respondent Patrick Martie
filed a timely response.2 ACNR did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s order, which granted Mr. Martie a 3%
permanent partial disability (“PPD”) award and instead granted him an additional 6% PPD
award for a total of a 9% PPD award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Martie suffered a compensable workplace injury on November 26, 2019, while
employed by ACNR. Mr. Martie reported that he was lifting a metal cover when he
experienced shoulder pain. Mr. Martie went on vacation shortly after his injury and did not
experience worsening symptoms until his return to work on December 11, 2019.

1
For reasons not readily apparent in the appendix record, the petitioner has
substituted “Ohio County Coal Resources, Inc.” for the employer that was identified below
as “ACNR Resources, Inc.” Consistent with the action of the Supreme Court of Appeals
of West Virginia in Delbert v. Murray American Energy, Inc., __ W. Va. __, __ n.1, 880
S.E.2d 89, 92 n.1 (2022), we use the name of the employer as designated in the order on
appeal: ACNR Resources, Inc.
2
ACNR is represented by Aimee M. Stern, Esq. Mr. Martie is represented by Sandra
K. Law, Esq.
1
On December 12, 2019, Mr. Martie was seen by Elizabeth Snyder, P.A. Ms. Snyder
noted that Mr. Martie’s right shoulder range of motion was limited by pain. An MRI of Mr.
Martie’s right shoulder revealed minimal acromioclavicular (“AC”) joint degenerative
changes. Ms. Snyder diagnosed Mr. Martie with right shoulder strain and right AC joint
strain. On December 31, 2019, the claim administrator issued an order holding the claim
compensable for unspecified sprain of the right shoulder joint and approving medical
expenses for that diagnosis.

On January 24, 2020, Mr. Martie was seen by Dante A. Marra, M.D., an orthopedic
surgeon. Dr. Marra diagnosed Mr. Martie with a right shoulder sprain with possible rotator
cuff pathology; impingement syndrome; acromioclavicular degenerative joint disease; and
contusion. On June 11, 2020, Mr. Martie underwent a right shoulder arthroscopy with
extensive shaving, arthroscopic SLAP repair, arthroscopic subacromial decompression,
and arthroscopic distal clavicle resection performed by Dr. Marra.

Mr. Martie was seen by George Bal, M.D., an orthopedic surgeon, on March 4,
2021. Mr. Martie indicated that he continued to experience right shoulder pain following
his surgery performed by Dr. Marra. Dr. Bal diagnosed Mr. Martie with a right shoulder
persistent labral tear. On May 14, 2021, Mr. Martie underwent a right shoulder arthroscopy
with debridement and right biceps tenodesis performed by Dr. Bal.

On October 1, 2021, Mr. Martie was seen by Prasadarao Mukkamala, M.D., for an
independent medical evaluation (“IME”). Dr. Mukkamala concluded that Mr. Martie had
reached his maximum medical improvement (“MMI”). Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993)
(“Guides”), Dr. Mukkamala found that Mr. Martie had a 3% impairment for loss of range
of motion in the right shoulder. However, Dr. Mukkamala opined that the distal clavicle
resection should not be rated because he felt that it was performed to address a preexisting
noncompensable degenerative arthrosis of the AC joint. The claim administrator issued an
order dated October 6, 2021, granting Mr. Martie a 3% PPD award based on the report of
Dr. Mukkamala.

Mr. Martie was seen by Bruce Guberman, M.D. on December 2, 2021. Dr.
Guberman opined that Mr. Martie had reached MMI. Using the Guides, Dr. Guberman
indicated that Mr. Martie had 6% upper extremity impairment (“UEI”) for loss of range of
motion and 10% UEI for undergoing a resection arthroplasty of the distal right clavicle.
Dr. Guberman combined those ratings and converted them to whole person impairment
(“WPI”), finding a total 9% WPI associated with the compensable injury. Dr. Guberman
noted that prior to the compensable injury Mr. Martie’s right shoulder was asymptomatic
and that he would not have undergone the resection arthroplasty of the distal clavicle but
for the compensable injury.

2
The Board issued an order dated December 13, 2022, reversing the claim
administrator’s order and granting Mr. Martie an additional 6% PPD award for a total of
9% PPD award based on the report of Dr. Guberman.

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) 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, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, ACNR argues that the Board erred by concluding that Dr. Guberman’s
report was the most reliable because he included a degenerative noncompensable condition
in the impairment rating. We disagree.

The Board found that there was no evidence Mr. Martie had ever sought medical
treatment or had any complaints regarding his right shoulder prior to his work injury. The
Board found that Dr. Guberman’s report was most reliable because he included the distal
clavicle resection in his rating of Mr. Martie’s impairment. The Board adopted Dr.
Guberman’s opinion that, despite some degenerative changes in his shoulder, Mr. Martie
would not have required distal clavicle resection if not for the work injury. Further, the
Board found that Dr. Mukkamala’s report was not reliable because he had not included the
distal clavicle resection in his rating of Mr. Martie’s impairment.

Upon review, we conclude that the Board was not clearly wrong in finding that Dr.
Guberman’s report was the most reliable because he rated Mr. Martie’s entire impairment
associated with the compensable injury and Dr. Mukkamala did not. Further, the Board
was not clearly wrong in granting Mr. Martie an additional 6% PPD award for a total of
9% PPD award based on Dr. Guberman’s report.

3
Finding no error in the Board’s December 13, 2022, order, we affirm.

Affirmed.

ISSUED: May 22, 2023

CONCURRED IN BY:

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

4