Summary
The West Virginia Supreme Court of Appeals affirmed a Board of Review decision upholding an 8% permanent partial disability award for James W. Kiser’s left shoulder injury. The court concluded that the medical evaluations supporting the 8% award were more persuasive than the evaluation supporting a higher impairment rating and found no clear legal or factual error.
Topics
Practice areas
Questions Presented
- Whether Kiser established that he was entitled to a permanent partial disability award greater than 8% for his compensable left shoulder injury.
- Whether the Office of Judges improperly discounted Dr. Poletajev’s impairment report and whether the Board of Review’s affirmance was supported by the evidentiary record.
Holdings
- Kiser failed to prove that he was entitled to an award greater than the 8% permanent partial disability award previously granted for his left shoulder injury.
- The Board of Review’s decision was not in clear violation of a constitutional or statutory provision, was not clearly the result of erroneous conclusions of law, and was not based on a material misstatement or mischaracterization of the evidentiary record.
Key quotations
“The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument.” (at 1)
“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.” (at 2)
Factual background
Kiser, a mechanic for Pinnacle Mining Company, was injured on January 18, 2007, when a large chunk of ice struck him while he was working in a mine elevator shaft. His workers’ compensation claim was held compensable for multiple chest, shoulder, scapular, rotator-cuff, and related conditions. Medical evaluators disagreed about the degree of impairment, but the Office of Judges and Board of Review found the 8% impairment opinions of Drs. Guberman and Landis more persuasive than Dr. Poletajev’s 30% opinion.
Procedural history
The claims administrator awarded Kiser 8% permanent partial disability for his left shoulder. The Workers’ Compensation Office of Judges affirmed that decision on July 28, 2011, and the Board of Review affirmed on January 31, 2012. Kiser appealed to the Supreme Court of Appeals of West Virginia, which affirmed the Board’s final order in a memorandum decision.