STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

THOMAS L. COPING, March 3, 2017 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0191 (BOR Appeal No. 2050694) 

(Claim No. 2010123172) 

ELEMENTIS SPECIALTIES F/K/A RH, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Thomas L. Coping, by Patrick K. Maroney, his attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Elementis Specialties F/K/A 

RH, by James W. Heslep, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in 

which the Board affirmed a July 16, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 29, 2014, 

decision which denied a request for temporary total disability benefits. 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. Coping, a dispersion operator, injured his back while pulling open a rollup door on 

February 6, 2010. The claim was held compensable for thoracic and cervical strains on February 

24, 2010. In two separate Orders, temporary total disability benefits were granted from February 

7, 2010, through February 14, 2010, and from February 16, 2010, through June 7, 2010. In a 

January 24, 2011, letter, Lester Labus, M.D., stated that he saw Mr. Coping that day for a return 

to work evaluation. At that time, Mr. Coping had no pain, his exam was normal, and he had good 

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motion and strength in his back. Dr. Labus released him to return to full duty work with no 

restrictions on February 1, 2011. 

Marsha Bailey, M.D., performed an independent medical evaluation in which she 

diagnosed chronic cervical, thoracic, and lumbar complaints without objective evidence of injury 

or true radiculopathy. She concluded that Mr. Coping’s lower extremity complaints were not 

consistent with true radiculopathy. His most recent MRI was normal. His upper extremity 

complaints were also found to be unsupported by objective medical evidence. Dr. Bailey opined 

that Mr. Coping needed no further treatment for the compensable injury and that he had reached 

maximum medical improvement. 

On October 9, 2012, the Office of Judges affirmed a claims administrator’s decision 

denying a request for temporary total disability benefits. The Office of Judges concluded in that 

case that Mr. Coping suffered an intervening injury on September 20, 2011, and his current 

issues were not related to the compensable injury. The Order was affirmed by the Board of 

Review and this Court. See Coping v. Elementis Specialties F/K/A RH, No. 13-0442 (Aug 13, 

2014) (memorandum decision). 

In a claim reopening application dated July 24, 2014, Mr. Coping requested temporary 

total disability benefits due to an aggravation and/or progression of his compensable injury. The 

physician’s section was signed by Mark Calfee, D.C., and listed diagnoses of cervical and 

thoracic sprains/strains. He noted ongoing neck and upper dorsal pain, radiation into the bilateral 

extremities, and associated paresthesia. Dr. Calfee stated that there had been no aggravation or 

progression of Mr. Coping’s disability since he was found to be at maximum medical 

improvement and released to resume employment. Mr. Coping’s condition was virtually 

unchanged. The temporary total disability period was listed as ongoing to December 31, 2014. 

The claims administrator denied Mr. Coping’s request for temporary total disability 

benefits on August 29, 2014. The Office of Judges affirmed the decision in its July 16, 2015, 

Order. It found that the claim was held compensable for thoracic and cervical strain. Mr. Coping 

was found to be at maximum medical improvement by Dr. Bailey on February 24, 2014. The 

Office of Judges noted that Mr. Coping has previously applied for temporary total disability 

benefits and his request was eventually denied by this Court. It was determined at that time that 

he suffered an intervening injury on September 20, 2011, and that his current issues were related 

to that injury, not the compensable one. In the instant case, the Office of Judges found that Dr. 

Calfee stated on the reopening application that Mr. Coping had not suffered an aggravation or 

progression of his compensable injury since he was found to be at maximum medical 

improvement and released to return to work. Therefore, the Office of Judges concluded that he 

failed to meet his burden of proof to show that he was entitled to temporary total disability 

benefits for the requested time period. The Board of Review adopted the findings of fact and 

conclusions of law of the Office of Judges and affirmed its Order on February 3, 2016 

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

Board of Review. In order to reopen a claim for temporary total disability benefits, a claimant 

must show that they sustained an aggravation or progression of their compensable injury. West 

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Virginia Code § 23-5-2 (2005) and West Virginia Code § 23-5-3 (2009). Mr. Coping has not 

presented sufficient evidence to show an aggravation or progression of his condition. Dr. Calfee, 

who signed the reopening application, stated on the application that his condition was unchanged 

and he had suffered no aggravation or progression of his compensable injury. 

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: March 3, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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