STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 9, 2015 

RORY L. PERRY II, CLERK 

PHILIP B. TULLY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0984 (BOR Appeal Nos. 2049280, 2049281) 

(Claim No. 2013008121) 

GINO’S,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Philip B. Tully, by William C. Gallagher, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Gino’s, by Steven K. Wellman, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 29, 2014, in 

which the Board reversed and vacated an April 30, 2014, Order of the Workers’ Compensation 

Office of Judges. In its Order, the Office of Judges reversed the February 7, 2013, claims 

administrator’s decision granting Mr. Tully a 0% permanent partial disability award and instead 

remanded the claim for another evaluation after Mr. Tully reaches maximum medical 

improvement. In its Order, the Board of Review also affirmed, in part, and reversed, in part, a 

February 27, 2014, Office of Judges’ Order and reinstated the May 1, 2013, claims 

administrator’s decision. In its February 27, 2014, Order, the Office of Judges affirmed October 

11, 2012; January 7, 2013; and February 8, 2013, claims administrator’s decisions denying 

temporary total disability benefits, denying an MPU Duplex Carotid and MRA of the head, and 

closing the claim for temporary total disability benefits. The Office of Judges reversed a May 1, 

2013, claims administrator’s decision denying a cervical MRI and follow-up appointments at 

Holzer Clinic and instead authorized the MRI and at least one follow-up appointment. The Court 

has carefully reviewed the records, written arguments, and appendices contained in the briefs, 

and the case is mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. 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 

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Mr. Tully, a delivery driver, was injured in the course of his employment on September 

21, 2012, when he was in a motor vehicle accident. The claim was held compensable for neck 

sprain, and he was released to return to work on modified duty. The claims administrator denied 

a request for temporary total disability benefits on October 11, 2012. Mr. Tully was treated for 

the injury by Nathaniel Majoris, D.C., who diagnosed neck sprain. He noted that Mr. Tully was 

experiencing spasms, a buzzing sensation, and tunnel vision when he twisted his neck a certain 

way. He requested an MPU Duplex Carotid and an MRA of the head to investigate a possible 

carotid or vertebrobasilar artery pathology. The claims administrator denied the request on 

January 7, 2013. 

Marsha Bailey, M.D., performed an independent medical evaluation on December 10, 

2012, in which Mr. Tully reported a history of back injury with chronic pain, mostly in the neck 

and back of the head. She opined that he has diagnoses of highly unusual complaints such as 

high pitched tones, nausea, and tunnel vision that are unrelated to his compensable injury. She 

stated that his complaints are not the result of a cervical sprain/strain. She noted that Mr. Tully 

denied lower back pain twice during the evaluation. She opined that he can return to work with 

no restrictions and stated that he asserted during the evaluation that he believed he could return 

to work. She further opined that Mr. Tully required no further treatment of any kind for the 

compensable injury. She assessed 0% whole person impairment. Based on her evaluation, the 

claims administrator granted Mr. Tully a 0% permanent partial disability award on February 7, 

2013. The claims administrator also denied a request for a cervical MRI and follow-up 

appointments at Holzer Clinic on May 1, 2013. 

On March 13, 2013, Mr. Tully testified in a deposition that he was rear ended while 

delivering pizzas. He stated that he went back to work after the accident but got progressively 

stiffer as the day went by and left work early. He sought treatment the following day. At that 

time, he was experiencing soreness between his shoulder blades and in his neck. He also 

experienced nausea and a feeling of fainting when he turned his head too far. He testified that he 

had a neck injury in 2009 when he fell approximately eight feet and landed on his head. Mr. 

Tully testified that he attempted to return to work shortly after the injury but that his employer 

took his name off of the schedule. He asserted that he turned in his uniform because the only 

work Gino’s had for him involved him sitting at work and waiting to see if they had extra 

deliveries. Kathy Veres, the direct supervisor at Gino’s asserted in an affidavit that three days 

after the injury, Mr. Tully voluntarily removed himself from the work schedule and turned in his 

uniform. Gino’s would have accommodated light duty work for him. She stated that he could 

have driven the company car to make deliveries or done other work at the restaurant, and he 

would have been paid while he was there. 

On February 27, 2014, the Office of Judges affirmed the claims administrator’s decisions 

denying temporary total disability benefits and closing the claim for temporary total disability 

benefits. It found that Mr. Tully testified he was removed from the work schedule following his 

compensable injury because his car was totaled. The Office of Judges determined that his 

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testimony was credible; however, it did not indicate that he was temporarily and totally disabled 

from working. He had some restrictions from overhead lifting, but nothing that would affect his 

ability to perform his job duties. The Office of Judges concluded that since he was not 

temporarily and totally disabled, he was not entitled to temporary total disability benefits 

regardless of the situation with his employer. The Office of Judges also affirmed the claims 

administrator’s denial of an MPU Duplex Carotid and MRA of the head. The tests were 

requested by Dr. Majoris, a chiropractor, to evaluate a possible carotid or vertebrobasilar artery 

pathology. The Office of Judges found that Dr. Bailey opined in her independent medical 

evaluation that Mr. Tully’s complaints were highly unusual and unrelated to the compensable car 

wreck. She recommended a neurology consultation before the tests were performed; however, 

she specified that the consultation should be conducted under his private insurance because the 

tests were not necessary for the compensable injury. The Office of Judges determined that her 

opinion was credible and reliable. It found that she is more qualified to speak on the matter as 

she is a medical doctor and Dr. Majoris is a chiropractor. The Office of Judges concluded that if 

Mr. Tully has artery problems, they would not be related to the compensable injury. 

In its Order, the Office of Judges also reversed the claims administrator’s denial of a 

cervical MRI and follow-up appointment. It found that the decision was based on Dr. Bailey’s 

independent medical evaluation. Dr. Bailey found that Mr. Tully sustained a sprain/strain to his 

cervical spine as a result of the injury. She noted that he had a prior neck injury in 2009, and the 

Office of Judges stated that he had a history of neck problems dating to at least 2003, when an 

MRI showed diffuse disc protrusions. The Office of Judges determined that the fact that he had 

prior problems does not preclude him from appropriate treatment for neck symptoms arising 

from the compensable injury. Even though Dr. Bailey opined that no further treatment was 

necessary for the compensable injury, the Office of Judges found that her own findings could 

reasonably support the need for a cervical MRI. Mr. Tully has continued neck complaints that 

have not resolved. The Office of Judges stated that since he was in a fragile state in regard to his 

neck prior to the accident, a persuasive case is made that it should be investigated whether the 

accident did further damage or exacerbated his pre-existing condition. It therefore concluded that 

an MRI and at least one follow-up visit were reasonable. 

In its April 30, 2014, Order, the Office of Judges reversed the claims administrator’s 

grant of a 0% permanent partial disability award and remanded the claim for an impairment 

rating once Mr. Tully reached maximum medical improvement. It noted that on February 27, 

2014, the Office of Judges authorized a cervical MRI in this claim. Therefore, while Dr. Bailey 

found Mr. Tully was at maximum medical improvement, the ruling in the prior Order was 

contrary to her opinion. Dr. Bailey examined him and found he qualifies for 4% impairment 

under Table 75 Category II-B of the American Medical Association’s Guides to the Evaluation 

of Permanent Impairment (4th ed. 1993). However, she placed him in Cervical Category I of 

West Virginia Code of State Rules § 85-20-Table E (2006) and adjusted the rating to 0% 

impairment. She also rated the thoracic spine, a non-compensable body part. The Office of 

Judges noted that she found that it was reasonable to assume that Mr. Tully injured his neck in 

the automobile accident. However, she did not sufficiently explain why she placed him in 

Cervical Category I and assessed 0% impairment. She also did not explain why she rated the 

thoracic spine. The Office of Judges determined that Dr. Bailey evaluated Mr. Tully less than 

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three months after the compensable injury. Given that his injury was superimposed upon prior 

neck injuries, it found that it was reasonable to expect him to take longer than usual to fully 

recover. The Office of Judges found that Dr. Bailey’s finding of maximum medical improvement 

was undermined by the authorization of a cervical MRI following her report. The Office of 

Judges therefore found that Dr. Bailey’s impairment rating was premature and that Mr. Tully 

should be referred for another assessment following his MRI and further treatment as necessary. 

On August 29, 2014, the Board of Review reversed the Office of Judges’ Order regarding 

the authorization of a cervical MRI as well as a follow-up visit and the remanding of the case for 

another impairment assessment. The Board of Review determined that the Office of Judges 

substituted its own judgment for the opinion of the experts as there is no medical record that 

recommends a cervical MRI. Based on Mr. Tully’s history, medical records, and the 

preponderance of the evidence standard, the Board of Review found that a cervical MRI is not 

necessary or reasonable for the compensable injury. The Board of Review further found that Dr. 

Bailey’s report was relevant, credible, material, and reliable. The evidence was determined to 

establish that Mr. Tully suffered no permanent impairment as a result of the compensable injury. 

The remainder of the Office of Judges’ Order was affirmed. 

On appeal, Mr. Tully argues that he had not reached maximum medical improvement 

when Dr. Bailey evaluated him. He asserts that the Office of Judges correctly found that her 

recommendation was not well explained. He further argues that the MRI results contradicted Dr. 

Bailey’s finding. Gino’s asserts that Mr. Tully has a longstanding history of substantial cervical 

spine problems. It argues that he presented no evidence showing that the requested MRI is 

necessary for the compensable injury. It further asserts that the only evidence regarding 

permanent partial disability was Dr. Bailey’s report in which she found he had reached 

maximum medical improvement, required no further treatment for the compensable injury, and 

had no permanent impairment. 

After review, we agree with the reasoning of the Office of Judges and the conclusions of 

the Board of Review. Mr. Tully had multiple pre-existing cervical problems. The actual request 

for a cervical MRI was not submitted into the record. There is no physician of record that stated 

that a cervical MRI was necessary for the compensable injury. It is therefore impossible to know 

why the cervical MRI was requested so it was properly denied. The Office of Judges’ reversal of 

the 0% permanent partial disability award was largely predicated on its authorization of the 

cervical MRI, which was incorrect. The only evidence of record regarding permanent partial 

disability was Dr. Bailey’s independent medical evaluation. Her report was thorough, and the 

Board of Review was correct to rely on it. 

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. Therefore, the decision of the Board of Review is affirmed. 

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Affirmed. 

ISSUED: July 9, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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