STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 27, 2014 

RORY L. PERRY II, CLERK 

DONALD DILLON, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0358 (BOR Appeal No. 2047724) 

(Claim No. 2011030227) 

UNITED PARCEL SERVICE, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Donald Dillon, by John Blair, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. United Parcel Service, Inc., by Jeffrey 

Brannon, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 21, 2013, in 

which the Board affirmed an August 28, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed, in part, and reversed, in part, the claims 

administrator’s June 6, 2011, decision which denied all treatment outside of the period from 

April 6, 2011, to May 23, 2011, and limited temporary total disability benefits from April 6, 

2011, to May 23, 2011. In its Order, the Office of Judges also affirmed the claims administrator’s 

August 22, 2011, decision which granted Mr. Dillon a 3% permanent partial disability award. 

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 

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

Procedure. 

Mr. Dillon, a delivery driver, developed Achilles tendonitis in the course of his 

employment. He was first diagnosed with the condition on January 25, 2011. He was treated and 

released to return to work on light duty on January 28, 2011. Mr. Dillon testified in a deposition 

on February 21, 2012, that he was unable to return to work after January 28, 2011, because 

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United Postal Service, Inc., did not offer light duty and he was unable to perform his regular job 

duties. Mr. Dillon testified that he was treated by an out of network provider, Dr. Wood, in 

February of 2011. His supervisor then informed him that he was required to see an approved 

provider so Mr. Dillon was referred to Kevin Brown, D.P.M. Dr. Brown diagnosed Achilles 

bursitis or tendinitis and excused Mr. Dillon from work from April 6, 2011 to May 23, 2011. 

Mr. Dillon underwent four independent medical evaluations in order to determine the 

amount of permanent impairment he sustained as a result of his compensable injury. Joseph 

Grady II, M.D., examined Mr. Dillon on July 26, 2011, and found that he had reached maximum 

medical improvement. He noted a slight decrease in range of motion in the right ankle and 

assessed 3% impairment. Prasadarao Mukkamala, M.D., and Phillip Surface, D.O., also found 

that Mr. Dillon had reached maximum medical improvement and had sustained 3% impairment 

from his compensable injury in their February 27, 2012, and May 9, 2012, independent medical 

examinations. On December 16, 2011, Victor Poletajev, D.C., found that Mr. Dillon had 

sustained 3% impairment for range of motion loss, 5% impairment for loss of muscle strength of 

dorsal flexion, and 2% impairment for loss of muscle strength of eversion for a combined total of 

10% impairment. 

On June 6, 2011, the claims administrator denied all treatment outside of the period from 

April 6, 2011, to May 23, 2011, and limited temporary total disability benefits from April 6, 

2011, to May 23, 2011. In its August 22, 2011, decision, the claims administrator granted Mr. 

Dillon a 3% permanent partial disability award. In its August 28, 2012, Order, the Office of 

Judges affirmed the June 6, 2011, claims administrator’s decision insofar as it limited temporary 

total disability benefits to the period from April 6, 2011, through May 23, 2011. It reversed and 

vacated the decision insofar as it denied all treatment outside of the period from April 6, 2011, 

through May 23, 2011. The Office of Judges also affirmed the August 22, 2011, claims 

administrator’s decision. On appeal, Mr. Dillon asserts that he is entitled to temporary total 

disability benefits outside of the allowed time period as well as an additional 7% permanent 

partial disability award. 

The Office of Judges found that Mr. Dillon failed to meet his burden of proof to 

demonstrate his entitlement to additional temporary total disability benefits because the exact 

period or periods of disability are unclear. The first report of injury listed the date of injury as 

February 7, 2011; however, the second report of injury and treatment records dated April 6, 

2011, listed the date of injury as January 25, 2011. A return to work slip dated January 25, 2011, 

released Mr. Dillon to return to work on January 28, 2011, and he testified that he was unable to 

return because light duty was not available. However, the Office of Judges found that he also 

testified that working in snow aggravated his injury. This indicated to the Office of Judges that 

though Mr. Dillon testified he was off of work from January 28, 2011, to April 6, 2011, he 

worked at least part of that time. Mr. Dillon also testified that he rearranged his vacation time so 

that he would have extra time off in order to heal but the record does not indicate how long said 

vacation time lasted. Finally, the Office of Judges held that Mr. Dillon could not receive 

temporary total disability benefits from January 25, 2011, through January 28, 2011, pursuant to 

West Virginia Code § 23-4-1c(b) (2009) because he was not rendered unable to work for longer 

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than three days. Therefore, he was only entitled to temporary total disability benefits from April 

6, 2011, to May 23, 2011. 

The Office of Judges found that Mr. Dillon was entitled to no more than a 3% permanent 

partial disability award. It noted that there are four independent medical evaluations in the 

evidentiary record. Drs. Grady, Mukkamala, and Surface all found that Mr. Dillon sustained 3% 

whole person impairment as a result of his compensable injury. Dr. Poletajev opined that he 

sustained 10% whole person impairment. The Office of Judges found Dr. Poletajev’s report to be 

unreliable because he appeared to measure the same impairment in different ways and his 

findings were notably dissimilar to the other examiners of record. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its March 21, 2013, decision. This Court agrees with the 

reasoning and conclusions of the Board of Review. Though Mr. Dillon testified he was treated 

by Dr. Wood in February of 2011, Dr. Wood’s treatment notes are not of record. There is no 

indication in the evidentiary record that he was taken off of work from January 28, 2011, to April 

6, 2011, by any physician and he is therefore ineligible for temporary total disability benefits 

during that period of time. 

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. 

Affirmed. 

ISSUED: June 27, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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