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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CRM WORKFORCE SOLUTIONS, LLC, 

Employer Below, Petitioner 

vs.) No. 23-ICA-439 (JCN: 2023012877) 

 

OSCAR CRUZ LAINES, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner CRM Workforce Solutions, LLC (“CRM”) appeals the September 5, 

2023, order of the Workers’ Compensation Board of Review (“Board”).Respondent Oscar 

Cruz Laines timely filed a response. 1

 Petitioner did not file a reply. The issue on appeal is 

whether the Board erred in reversing the claim administrator’s orders, which denied Mr. 

Cruz Laines temporary total disability (“TTD”) benefits and denied his authorization for 

surgery. 

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. Cruz Laines sustained an injury to his right thumb on December 16, 2022, while 

working for CRM. Mr. Cruz Laines sought treatment at Pleasant Valley Hospital and 

underwent an x-ray of the right hand, which revealed a soft tissue defect along the distal 

first digit; multiple small radiodensities in the region suspicious for foreign bodies; cortical 

disruption along the ventral aspect of the first digit distal phalanx; and an avulsed fracture 

fragment along the ulnar aspect of the base of the first digit distal phalanx, with sclerotic 

margins suggesting chronicity. Mr. Cruz Laines was diagnosed with a laceration of the 

right thumb and an open avulsion fracture of the distal phalanx of “finger.” 

On February 10, 2023, Mr. Cruz Laines was seen by Warren Reynolds, PA-C. Mr. 

Reynolds diagnosed a fracture of the distal phalanx of the thumb and expressed concern 

that Mr. Cruz Laines could develop an infection due to the open fracture. Mr. Cruz Laines 

was next seen by William Stewart, M.D., on February 13, 2023. Dr. Stewart noted that Mr. 

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 CRM is represented by Jeffrey B. Brannon, Esq., and Loren C. Allen, Esq. Mr. 

Cruz Laines is represented by William B. Gerwig III, Esq. 

FILED

December 27, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Cruz Laines continued to have significant pain and limited active flexion in the right thumb. 

Dr. Stewart diagnosed a fracture of the distal phalanx of the right thumb, recommended 

“protection during work and gentle range of motion when at home,” and provided Mr. Cruz 

Laines with an aluminum foam splint.

Mr. Cruz Laines returned to see Dr. Stewart on February 28, 2023, and reported that 

his thumb was a little better but that he still had pain and stiffness. Dr. Stewart noted 

decreased range of motion in the right thumb and stated that Mr. Cruz Laines could work 

if he is able to avoid lifting or gripping with his right hand.

On March 29, 2023, Mr. Cruz Laines underwent an occupational therapy evaluation 

and reported that his thumb had improved over the last week with a mild decrease in 

hypersensitivity. The accompanying report, dated April 10, 2023, indicated that the “[o]nly 

concerns for improvement in hypersensitivity is for residual retained material or 

development of a neuroma in the future.”

Mr. Cruz Laines completed an Employees’ and Physicians’ Report of Occupational 

Injury on April 19, 2023, and indicated that he injured his right thumb while cutting metal 

pipes. Dr. Stewart completed the physicians’ section on a later date and described the injury 

as a crushed right thumb with fracture and nerve injury. Dr. Stewart also indicated that Mr. 

Stewart was to remain off work from December 16, 2022, through July 1, 2023.

On May 23, 2023, Mr. Cruz Laines was again seen by Dr. Stewart and reported 

moderate to severe tenderness of the ulnar tip of the thumb, a persistent mass or bulge that 

is extremely painful to touch, limited flexion in the IP joint, and a nail deformity of the 

right thumb. Dr. Stewart diagnosed acquired deformity of the nail, neuroma digital nerve, 

and crushing injury of the right thumb. Dr. Stewart explained to Mr. Cruz Laines that the 

“only option would be to surgically explore the area in hopes of finding a neuroma which 

could be excised.” Dr. Stewart also stated that he could address the nail deformity by 

excising and ablating the nail remnant. Lastly, Dr. Stewart indicated that Mr. Cruz Laines 

remained off work as no modified duty was available.

By order dated May 30, 2023, the claim administrator held the claim compensable 

on a no lost time basis for displaced fracture of the right thumb; crushing injury of the right 

thumb; and digital nerve injury, right thumb injury of digital nerve of right thumb. That 

same day, counsel for Mr. Cruz Laines requested authorization for the surgery 

recommended by Dr. Stewart and included a note from Dr. Stewart which indicated that 

Mr. Cruz Laines was being scheduled for surgery on his thumb for a possible neuroma and 

nail bed repair. Dr. Stewart later completed an Attending Physician Benefits Form, which 

indicated that Mr. Cruz Laines’ period of disability was from March 22, 2023, through July 

15, 2023, depending on the surgery date. Mr. Cruz Laines protested the May 30, 2023, 

order.
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On June 1, 2023, the claim administrator issued an order denying authorization for 

the surgery, finding that there was no medical evidence indicating that the requested 

surgery was medically necessary or reasonably required to treat the compensable injury. 

Mr. Cruz Laines protested this order. Mr. Cruz Laines returned to see Dr. Stewart on June 

27, 2023, with similar complaints such as tenderness and numbness. Dr. Stewart noted that 

Mr. Cruz Laines was unable to grip things as a result of the injury. The plan for the thumb 

was a surgical exploration in hopes of finding a neuroma with subsequent excision and 

repair.

On August 3, 2023, CRM submitted a closing argument to the Board contending 

that Mr. Cruz Laines had not missed any work due to the compensable injury until March 

23, 2023. CRM argued that the claim was held compensable on a no lost time basis and 

asserted that if Mr. Cruz Laines desired TTD benefits, he should petition to reopen the 

claim rather than appeal the order on compensability to accomplish his goal. CRM further 

argued that the surgery requested by Dr. Stewart was to treat non-compensable conditions. 

Mr. Cruz Laines also submitted closing arguments to the Board.

By order dated September 5, 2023, the Board reversed the claim administrator’s 

June 1, 2023, order denying authorization for the surgery and granted the request. The 

Board modified the claim administrator’s May 30, 2023, order holding the claim 

compensable on a no lost time basis and granted TTD benefits from March 23, 2023, 

through July 15, 2023, and continuing thereafter as substantiated by credible medical 

evidence. 

The Board found that the claim had been held compensable for displaced fracture 

of the right thumb; crushing injury of the right thumb; and digital nerve injury, right thumb 

injury of digital nerve of right thumb, and noted that Mr. Cruz Laines continued to have 

pain, limited motion, and a nail deformity which rendered him unable to perform his job 

activities. The Board found that Dr. Stewart’s opinion that surgery was necessary was 

uncontradicted by any medical evidence. As such, the Board found that the evidence 

demonstrated that the surgery was medically necessary and reasonably required to treat the 

compensable injury. The Board further determined that Mr. Cruz Laines was entitled to 

TTD benefits based on Dr. Stewart’s report, which indicated that Mr. Cruz Laines was 

temporarily and totally disabled from March 23, 2023, through July 15, 2023, depending 

on the date of surgery. CRM now appeals and filed an accompanying motion for stay, 

which this Court refused by order dated November 9, 2023.

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 
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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, 555, 882 S.E.2d 916, 921 (Ct. App. 

2022).

On appeal, CRM raises two assignments of error. CRM first argues that the Board 

erred in granting Mr. Cruz Laines TTD benefits when “there is no evidence that [he] missed 

more than [three] days of work due to the compensable injury in this claim and when [Mr. 

Cruz Laines’] own evidence establishes that [he] is not alleging any disability prior to 

March 23, 2023.” CRM cites to West Virginia Code § 23-4-5 (2003)2 and to West Virginia 

Code of State Rules § 85-1-5.1 (2009) 3 to argue that Mr. Cruz Laines was not entitled to 

TTD benefits because there was no evidence that he was taken off work for more than three 

calendar days immediately following the date of the injury. CRM states that, rather, Mr. 

Cruz Laines’ evidence indicates that he worked through March 23, 2023, and that because 

the injury was December 16, 2023, the claim administrator did not err in holding the claim 

compensable on a no lost time basis. CRM argues that if Mr. Cruz Laines sought TTD 

benefits, he should have filed a petition to reopen the claim for benefits but did not. Because 

the issue before the Board was compensability on a no lost time basis, CRM contends that 

the Board’s order granting TTD benefits was clearly wrong and in excess of its jurisdiction 

and authority.

2 West Virginia Code § 23-4-5, in relevant part, provides that: “[i]f the period of 

disability does not last longer than three days from the day the employee leaves work as 

the result of the injury, no award shall be allowed, except the disbursements provided for 

in the two next preceding sections[.]”

3 West Virginia Code of State Rules § 85-1-5.1, in relevant part, provides that: “[t]o 

qualify for temporary total disability benefits, the claimant must be unable to work as a 

result of the compensable injury more than three (3) consecutive calendar days following 

the date of injury before benefits become payable.”
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We disagree. As the Supreme Court of Appeals of West Virginia has set forth, “[t]he 

‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones 

which presume an agency’s actions are valid as long as the decision is supported by 

substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 

S.E.2d 483 (1996). With this deferential standard of review in mind, we are unable to 

conclude that the Board was clearly wrong in modifying the claim administrator’s order 

and granting Mr. Cruz Laines TTD benefits.

We first note that CRM’s arguments presume that West Virginia Code § 23-4-5 and 

West Virginia Code of State Rules § 85-1-5.1 are to be read to mean that a claimant must 

be temporarily and totally disabled for three consecutive days immediately following the 

compensable injury in order to be entitled to TTD benefits. However, no such immediacy 

language can be found in either the statute or the rule. West Virginia Code § 23-4-5 

provides that a claimant must be temporarily and totally disabled for three days “from the 

day that the employee leaves work as a result of the injury.” West Virginia Code of State 

Rules § 85-1-5.1 requires that a claimant be temporarily and totally disabled for “more than 

three (3) consecutive calendar days following the date of injury.” Neither the statute nor 

the rule requires a claimant to be temporarily and totally disabled for more than three days 

immediately following the compensable injury in order to qualify for TTD benefits. As the 

Supreme Court of Appeals has repeatedly held, “[w]here the language of a statute is free 

from ambiguity, its plain meaning is to be accepted and applied without resort to 

interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).

Accordingly, we decline to read the statute and the rule cited to by CRM as requiring that 

a claimant be temporarily and totally disabled for more than three days immediately 

following the compensable injury.

Moreover, the evidence is clear that Mr. Cruz Laines became temporarily and totally 

disabled due to his work-related injury. The medical records indicate that Mr. Cruz Laines 

continued to complain of pain in his thumb and underwent occupational therapy, which 

ultimately did not address his complaints, and he eventually ceased working. Dr. Stewart 

recommended that Mr. Cruz Laines undergo exploratory surgery to address the continued 

complaints of pain and assisted Mr. Cruz Laines in completing an application for workers’ 

compensation benefits, which indicated that Mr. Cruz Laines had ceased working on March 

23, 2023, due to the compensable injury. As such, at the time that the claim administrator 

issued its order on compensability, it was well aware that Mr. Cruz Laines had ceased 

working for more than three days due to the work-related injury. Accordingly, the claim 

administrator should have granted TTD benefits with the initial compensability order, and 

the Board was not clearly wrong in modifying the order to do so.

CRM’s second assignment of error states that the Board erred in reversing the claim 

administrator’s order and authorizing surgery for a possible neuroma and nailbed repair. 

According to CRM, the claim administrator held the claim compensable for displaced 

fracture of the right thumb; crushing injury of the right thumb; and digital nerve injury, 
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right thumb injury of digital nerve of right thumb. However, the request for surgery listed 

the applicable diagnoses as “acquired deformity of nail” and “neuroma digital nerve,” 

neither of which, according to CRM, are compensable. CRM also points out that the 

requested surgery was exploratory in nature and could worsen Mr. Cruz Laines’ condition 

and, as such, was not medically necessary or reasonably related to the compensable 

conditions in this claim. 

Again, we disagree. West Virginia Code § 23-4-3(a)(1) (2005) provides that the 

claim administrator must provide medically related and reasonably required sums for 

healthcare services, rehabilitation services, durable medical and other goods, and other 

supplies. Here, Dr. Stewart noted that Mr. Cruz Laines’ continued symptoms and deformed 

nailbed were a direct result of the compensable injury, and listed neuroma digital nerve as 

the diagnosis on the surgery authorization request. Importantly, digital nerve injury of the 

right thumb is a compensable condition. That the surgery could worsen the condition is a 

risk typically associated with any surgical procedure, yet Dr. Stewart’s surgical 

recommendation was not rebutted by medical evidence. Therefore, we find that the 

evidence demonstrates that this request for authorization of the surgery is medically 

necessary and reasonably related to the compensable conditions in the claim. The Board 

did not clearly err in authorizing Dr. Stewart’s request for surgery.

For the foregoing reasons, we affirm the Board’s September 5, 2023, order.

Affirmed.

ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen