Wade v. Murray American Energy, Inc. ( 2021 )


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  •                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    SHERMAN WADE,
    FILED
    Claimant Below, Petitioner
    May 20, 2021
    EDYTHE NASH GAISER, CLERK
    vs.)   No. 20-0273 (BOR Appeal No. 2054540)                                  SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    (Claim No. 2019013694)
    MURRAY AMERICAN ENERGY, INC.,
    Employer Below, Respondent
    MEMORANDUM DECISION
    Petitioner Sherman Wade, by Counsel J. Thomas Greene Jr. and T. Colin Greene, appeals
    the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
    Murray American Energy, Inc., by Counsel Denise D. Pentino and Aimee M. Stern, filed a timely
    response.
    The issues on appeal are an additional compensable condition, temporary total disability
    benefits, and medical benefits. The claims administrator denied a request to add back strain to the
    claim on March 4, 2019. On March 12, 2019, the claims administrator closed the claim for
    temporary total disability benefits. The claims administrator denied authorization for a lower
    extremity EMG on April 1, 2019. The Workers’ Compensation Office of Judges (“Office of
    Judges”) reversed the March 12, 2019 decision and granted temporary total disability benefits for
    December 24, 2018, and affirmed the March 4, 2019, and April 1, 2019, claims administrator’s
    decisions in its August 15, 2019, Order. The Order was affirmed by the Board of Review on
    February 21, 2020. 1
    The Court has carefully reviewed the records, written arguments, and appendices contained
    in the briefs, and the case is mature for consideration. 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.
    1
    Mr. Wade requests temporary total disability benefits from March 11, 2019, through
    June 17, 2019.
    1
    The standard of review applicable to this Court’s consideration of workers’ compensation
    appeals has been set out under W.Va. Code § 23-5-15, in relevant part, as follows:
    (b) In reviewing a decision of the board of review, the supreme court of appeals
    shall consider the record provided by the board and give deference to the board’s
    findings, reasoning and conclusions[.]
    ....
    (d) If the decision of the board effectively represents a reversal of a prior ruling of
    either the commission or the Office of Judges that was entered on the same issue in
    the same claim, the decision of the board may be reversed or modified by the
    Supreme Court of Appeals only if the decision 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. The court may not conduct a de novo
    re-weighing of the evidentiary record. . . .
    See Hammons v. W. Va. Off. of Ins. Comm’r, 
    235 W.Va. 577
    , 
    775 S.E.2d 458
    , 463-64 (2015). As
    we previously recognized in Justice v. West Virginia Office Insurance Commission, 
    230 W. Va. 80
    , 83, 
    736 S.E.2d 80
    , 83 (2012), we apply a de novo standard of review to questions of law arising
    in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of Ins. Comm’r, 
    227 W. Va. 330
    , 334, 
    708 S.E.2d 524
    , 528 (2011).
    Mr. Wade, a coal miner, was injured on December 20, 2018, when he was struck on the
    head by a rock at work. He sought treatment that day from Wheeling Hospital Emergency
    Department where he reported head and neck symptoms. The Employees’ and Physicians’ Report
    of Injury was also completed that day and indicates Mr. Wade suffered headache, muscle spasms,
    cervical dorsalgia, and a head injury in the course of his employment. Mr. Wade was treated for
    the compensable injury by Clark Milton, D.O., and on December 24, 2018, he was released to
    return to work with no restrictions. The claim was held compensable for unspecified head injury
    on January 8, 2019.
    In a February 11, 2019, treatment note, Ross Tennant, NP, noted that Mr. Wade reported
    no cervical or upper extremity pain. However, he had developed low back pain radiating into the
    right thigh as well as constant numbness and tingling in the right foot. Lumbar x-rays showed mild
    degenerative changes. Thoracic x-rays showed mild degenerative disc disease. Mr. Tennant
    diagnosed closed head injury, cervical strain, and lumbar strain with radiculopathy. Mr. Tennant
    recommended lumbar sprain be added to the claim. He stated that Mr. Wade could return to work
    without restrictions. On February 25, 2019, Mr. Tennant opined that Mr. Wade may have a lumbar
    disc protrusion and recommended an MRI. Mr. Wade declined light duty restrictions. A March 1,
    2019, lumbar MRI showed degenerative changes, most severe from L2 through L5. There was no
    significant central stenosis or nerve root compression. The claims administrator denied a request
    to add back strain to the claim on March 4, 2019.
    2
    In a March 11, 2019, treatment note, Mr. Tennant stated that Mr. Wade’s symptoms were
    worsening, but he continued to work without restrictions. Mr. Tennant diagnosed closed head
    injury, cervical strain, lumbar strain with radiculopathy, and degenerative changes. He stated that
    Mr. Wade was unable to work until April 12, 2019. The claims administrator closed the claim for
    temporary total disability benefits on March 12, 2019.
    Ronald Fadel, M.D., performed a Record Review on March 30, 2019, in which he opined
    that Mr. Wade did not sustain a low back injury as a result of the compensable injury. He noted
    that Mr. Wade did not report lower back symptoms when he was initially treated or at his follow
    up appointment four days later. The claims administrator denied authorization for a lower
    extremity EMG on April 1, 2019. On April 8, 2019, Mr. Wade returned to Mr. Tennant and
    reported worsening symptoms. Mr. Wade remained off of work. A bilateral lower extremity EMG
    was performed on May 6, 2019, and showed normal results.
    Mr. Wade testified in a May 17, 2019, deposition that he initially experienced cervical
    spine symptoms following the compensable injury. Two to three weeks later, he developed leg
    tingling. Mr. Wade denied any similar symptoms prior to the compensable injury. He asserted that
    his symptoms have continued to worsen. Mr. Wade testified that he had not worked since March
    2, 2019.
    In its August 15, 2019, Order, the Office of Judges reversed the claims administrator’s
    denial of temporary total disability benefits and granted benefits for December 24, 2018. The
    Office of Judges affirmed the remainder of the claims administrator’s decisions. Regarding the
    addition of back strain to the claim, the Office of Judges determined that Mr. Wade failed to show
    that the condition resulted from the compensable injury. Mr. Wade did not report lower back pain
    when he was initially treated or at his follow-up appointment four days later. Mr. Wade testified
    that he did not develop low back or lower extremity symptoms until three weeks after the
    compensable injury. The Office of Judges also found that Dr. Fadel performed a record review in
    which he determined that Mr. Wade did not sustain a lower back injury on December 20, 2018.
    Dr. Fadel found that Mr. Wade did not initially report lower back symptoms. When he was seen
    for follow-up four days later, Mr. Wade reported improvement in his symptoms and requested to
    be released to return to work. The Office of Judges found Dr. Fadel’s opinion to be reliable.
    Regarding temporary total disability benefits, West Virginia Code § 23-4-1c provides that
    temporary total disability benefits will be granted when the period of disability is greater than three
    days. The Office of Judges found that Mr. Wade was temporarily and totally disabled for more
    than three days as a result of the compensable injury. He was injured on December 20, 2019, and
    released to return to work beginning December 25, 2018. However, pursuant to West Virginia
    Code § 23-4-5, if a claimant is disabled for less than seven days as a result of the compensable
    injury, he or she is not entitled to benefits for the first three days of disability. Therefore, the Office
    of Judges concluded that Mr. Wade was entitled to benefits for December 24, 2018. Lastly, the
    Office of Judges found that the request for a lower extremity EMG was properly denied. The test
    was requested to evaluate lower back and bilateral lower extremity symptoms, which the Office
    of Judges found to be unrelated to the compensable injury. The Board of Review adopted the
    3
    findings of fact and conclusions of law of the Office of Judges and affirmed its Order on February
    21, 2020.
    After review, we agree with the reasoning and conclusions of the Office of Judges as
    affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that
    was received in the course of employment, and it must have resulted from that employment.
    Barnett v. State Workmen’s Comp. Comm’r, 
    153 W.Va. 796
    , 
    172 S.E.2d 698
     (1970). A
    preponderance of the evidence indicates Mr. Wade did not sustain a lower back injury in the course
    of his employment. As found by the Office of Judges, temporary total disability benefits were
    properly granted for December 24, 2018. Lastly, for an injury to be compensable it must be a
    personal injury that was received in the course of employment, and it must have resulted from that
    employment. Barnett v. State Workmen’s Comp. Comm’r, 
    153 W.Va. 796
    , 
    172 S.E.2d 698
     (1970).
    The request for a bilateral lower extremity EMG was properly denied because it is not necessary
    treatment for a compensable condition in the claim. Therefore, the decision of the Board of Review
    is affirmed.
    Affirmed.
    ISSUED: May 20, 2021
    CONCURRED IN BY:
    Chief Justice Evan H. Jenkins
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice John A. Hutchison
    Justice William R. Wooton
    4
    

Document Info

Docket Number: 20-0273

Filed Date: 5/20/2021

Precedential Status: Precedential

Modified Date: 5/20/2021