1 

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ABBY L. BOYES, 

Claimant Below, Petitioner 

vs.) No. 23-ICA-2 (JCN: 2021008259) 

 

HOSPICE OF SOUTHERN WEST VIRGINIA, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION

Petitioner Abby L. Boyes appeals the December 6, 2022, order of the Workers’ 

Compensation Board of Review (“Board”). Respondent Hospice of Southern West 

Virginia, Inc. (“HSWV”) filed a timely response.1 Ms. Boyes did not file a reply. The issues 

on appeal are whether the Board erred in affirming the claim administrator’s orders, which 

1) denied the claimant’s request to add a crushing injury of right foot, ligament disorder of 

the right foot, Morton’s neuroma, and capsulitis of the right foot as compensable conditions 

under the claim; 2) denied authorization for right foot surgery; 3) denied a referral to a 

neurologist; 4) closed the claim for TTD benefits; and 5) denied a request for Lyrica.

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 that there is error in the Board’s decision but no substantial 

question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d) 

of the Rules of Appellate Procedure for reversal in a memorandum decision. For the 

reasons set forth below, the Board’s decision is affirmed, in part, vacated, in part, and this 

case is remanded for further proceedings consistent with this decision.

Ms. Boyes suffered a workplace injury on October 21, 2020, while employed by 

HSWV, when a bariatric bed rolled over her right foot. Ms. Boyes was seen at MedExpress 

the day of the injury and she was diagnosed with contusion of the right foot. On October 

27, 2020, the claim administrator issued an order holding the claim compensable for 

contusion of the right foot. On October 28, 2020, Ms. Boyes underwent an x-ray of her 

right foot, which revealed degenerative changes, and a slight angulation at the proximal 

phalanx of the third toe that was attributed to an old, healed injury. 

1 Ms. Boyes is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.

HSWV is represented by Charity K. Lawrence, Esq.

FILED

September 5, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

On November 4, 2020, Ms. Boyes was seen by Kevin D. Brown, DPM. Ms. Boyes 

reported that she suffered a right foot injury at work. Dr. Brown diagnosed her with 

capsulitis of the right foot, Morton’s neuroma of third interspace of the right foot, and other 

enthesopathies. On November 10, 2020, Ms. Boyes underwent an MRI of her right foot, 

which revealed mild osteoarthritis and soft-tissue swelling adjacent to the 4th and 5th 

metatarsals, associated with a soft-tissue contusion or cellulitis. 

Ms. Boyes submitted a Diagnosis Update form dated November 25, 2020,

requesting the addition of capsulitis of the right foot and Morton’s neuroma as compensable 

components of the claim. On December 16, 2020, James Dauphin, M.D., completed a 

Physician Review report. Dr. Dauphin opined that Morton’s neuroma was not associated 

with the compensable injury because they are rarely traumatic conditions, however he also 

stated that “[h]aving said that, I do appreciate that this is really a crushing injury of the 

foot, and, therefore, will not behave according to set timeframes.” The claim administrator 

issued an order dated December 30, 2020, which denied the addition of capsulitis of the 

right foot and Morton’s neuroma as compensable components of the claim based on the 

report of Dr. Dauphin. 

Ms. Boyes returned to work part-time on February 3, 2021. On April 14, 2021, Ms. 

Boyes was again seen by Dr. Brown. The examination revealed mild swelling to the 

subtalar joint laterally, which Dr. Brown opined was most likely due to the compensable 

injury. Dr. Brown requested authorization for a referral to neurology for peripheral nerve 

evaluation due to Ms. Boyes’ diagnosis of capsulitis and authorization for Lyrica.

On June 9, 2021, Ms. Boyes was examined by Stephen F. Conti, M.D. Dr. Conti

diagnosed Ms. Boyes with a contusion of the right foot, possible third toe fracture which 

was healed, and edema. Dr. Conti opined that the edema could be explained by mild 

residual inflammation or general swelling due to Ms. Boyes’ weight and diabetes. Dr. Conti 

further opined that Ms. Boyes had fully recovered from her compensable injury and could 

return to work without restrictions.

Dr. Brown requested authorization for a right foot excision of neuroma with plantar 

plate repair on June 14, 2021. On June 21, 2021, the claim administrator issued an order, 

which suspended TTD benefits based upon Dr. Conti’s opinion that Ms. Boyes could return 

to work. Ms. Boyes protested this order. Randall L. Short, M.D., completed a Physician 

Review report dated June 21, 2021. The issue presented was whether excision of a 

Morton’s neuroma with plantar repair was medically necessary and related to the 

compensable injury. Dr. Short opined that the requested treatment should not be authorized. 

On June 28, 2021, the claim administrator issued an order, which denied authorization for 

right foot excision of neuroma with plantar plate repair.

On August 6, 2021, Dr. Brown opined that Ms. Boyes developed plantar plate 

instability at the 2nd metatarsal that had manifested over the past three to four months. Dr. 
3

Brown further opined that Ms. Boyes was unable to work and would likely require surgery 

to repair her plantar plate and remove her neuroma. On August 23, 2021, Rebecca Thaxton, 

M.D., completed a Physician Review report. The issue presented was whether Lyrica and 

a neurology referral should be authorized. Dr. Thaxton opined that the requested treatment 

should not be authorized. Dr. Thaxton further opined that Ms. Boyes’ weight and diabetes 

could account for the request for Lyrica and the neurology referral.

Ms. Boyes underwent an excision of a Morton’s neuroma on her right foot on 

August 24, 2021. Dr. Brown’s post-operative assessment was crushing injury of the right 

foot; disorder of ligament, right foot; Morton’s neuroma of third interspace of the right 

foot; capsulitis of metatarsophalangeal of the right foot; and localized edema. On August 

25, 2021, Ms. Boyes submitted a Diagnosis Update, requesting that capsulitis and Morton’s 

neuroma be added to the claim as compensable conditions. The claim administrator issued 

an order dated August 26, 2021, which denied authorization for a referral to neurology and 

Lyrica. Ms. Boyes protested this order. On September 9, 2021, Dr. Brown opined that Ms. 

Boyes could not return to work until October 12, 2021.

On February 17, 2022, Dr. Thaxton drafted a second report regarding Ms. Boyes’

diagnosis of capsulitis of the right foot. Dr. Thaxton reported that the capsulitis diagnosis 

refers to pathology of the tendons and/or ligaments where they attach to the bones. After 

reviewing x-rays and an MRI of Ms. Boyes’ right foot, Dr. Thaxton found that neither 

revealed evidence of tendon or ligamentous disruption. Thus, Dr. Thaxton opined that the 

evidence did not support a diagnosis of capsulitis. 

On December 6, 2022, the Board issued an order affirming the claim administrator’s 

orders, which denied Ms. Boyes’ request to add a crushing injury of right foot, ligament 

disorder of the right foot, Morton’s neuroma, and capsulitis of the right foot as 

compensable conditions under the claim; denied authorization for excision of a Morton’s 

neuroma on the right foot; denied a referral to a neurologist; denied authorization for 

Lyrica; and closed the claim for TTD benefits. Ms. Boyes now appeals. 

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 

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

(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, Ms. Boyes argues that Dr. Brown, her treating physician, was in a better 

position to determine whether her diagnoses and requested treatment were related to her 

injury. Ms. Brown also argues that the medical evidence does not support the Board’s 

conclusion regarding the requested diagnoses, requested treatment, or TTD benefits. Ms. 

Boyes further argues that the Board erred in failing to analyze the requested diagnoses 

under Supreme Court of Appeals of West Virginia holdings in the cases of Gill v. City of 

Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and Moore v. ICG Tygart Valley, LLC, 

247 W. Va. 292, 879 S.E.2d 779 (2022). We agree that the Board should have performed

an analysis of the requested diagnoses under Gill and Moore. 

The Supreme Court held in Gill: 

A noncompensable preexisting injury may not be added as a compensable 

component of a claim for workers’ compensation medical benefits merely 

because it may have been aggravated by a compensable injury. To the extent 

that the aggravation of a noncompensable preexisting injury results in a 

[discrete] new injury, that new injury may be found compensable. 

Gill at 738, 783 S.E.2d at 858. syl. pt. 3. 

The Court clarified its position in Moore, holding: 

A claimant's disability will be presumed to have resulted from the 

compensable injury if: (1) before the injury, the claimant's preexisting 

disease or condition was asymptomatic, and (2) following the injury, the 

symptoms of the disabling disease or condition appeared and continuously 

manifested themselves afterwards. There still must be sufficient medical 

evidence to show a causal relationship between the compensable injury and 

the disability, or the nature of the accident, combined with the other facts of 

the case, raises a natural inference of causation. This presumption is not 

conclusive; it may be rebutted by the employer.

Moore at ___, 879 S.E.2d at 781. syl. pt. 5. 
5

The Board found that the evidence established that Ms. Boyes’ diagnoses of a 

crushing injury of right foot, ligament disorder of the right foot, Morton’s neuroma, and 

capsulitis of the right foot were not related to her compensable injury. The Board relied on 

Dr. Thaxton’s report determining that the evidence did not support a diagnosis of capsulitis

of the right foot based on her review of an MRI and x-rays of Ms. Boyes right foot. The 

Board adopted Dr. Dauphin’s opinion that Morton’s neuroma was not compensable as it is 

rarely a traumatic condition. The Board further determined that crushing injury to the right 

foot was not compensable because Dr. Brown opined that it caused the Morton’s neuroma 

and capsulitis of the right foot and, as those diagnoses were determined to be 

noncompensable, crushing injury was also noncompensable. Thus, the Board determined 

that Ms. Boyes’ requests for authorization for excision of a Morton’s neuroma on the right 

foot, a referral to a neurologist, and authorization for Lyrica were properly denied. Further, 

the Board determined that the claim was properly closed for TTD benefits since only 

noncompensable conditions prevented Ms. Boyes from returning to work. 

Upon review, we conclude that the Board was not clearly wrong in determining that 

Ms. Boyes’ plantar plate instability has not been held compensable in this claim and, thus, 

affirming the denial of her request for plantar plate repair surgery. Also, the Board was not 

clearly wrong in determining that there was insufficient evidence to establish that Ms. 

Boyes suffered capsulitis of the right foot based on the report of Dr. Thaxton. Further, the 

Board was not clearly wrong in affirming the denial of authorization for Lyrica and a 

referral to neurology as these requests were related to the noncompensable diagnosis of 

capsulitis.

However, we find that the Board’s analysis was inadequate when it decided that the 

diagnoses of crushing injury of right foot, ligament disorder of the right foot, and Morton’s 

neuroma were not compensable. Thus, we find the Board’s ruling on these conditions was 

clearly wrong due to a lack of the required analysis. The Board should have performed its

analysis of these conditions under the guidance of the Supreme Court of Appeals of West 

Virginia’s holdings in the cases of Moore and Gill. Further, because the Board failed to 

perform the appropriate analysis, Ms. Boyes’ request for the authorization of excision of 

Morton’s neuroma and the closure to the claim for TTD benefits should be reevaluated. 

Accordingly, we affirm, in part, and vacate, in part, the Board’s December 6, 2022,

order, and remand this matter to the Board for further proceedings consistent with this

decision. 

Affirmed, in part. Vacated and Remanded, in part.

ISSUED: September 5, 2023

CONCURRED IN BY:
6

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr 

Judge Charles O. Lorensen