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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

JAMES PRICE, 

Claimant Below, Petitioner 

vs.) No. 22-ICA-115 (JCN: 2022010051) 

BIAFORE LANDSCAPE DEVELOPMENT, LLC, 

Employer Below, Respondent

MEMORANDUM DECISION 

Petitioner James Price appeals the August 15, 2022, order of the Workers’ 

Compensation Board of Review (“Board”). Respondent Biafore Landscape Development, 

LLC (“Biafore”) filed a timely response.1 Petitioner did not file a reply. The issue on appeal 

is whether the Board erred in affirming the claim administrator’s March 3, 2022, order 

closing Mr. Price’s temporary total disability (“TTD”) benefits. 

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. For the reasons set forth below, the Board’s decision is vacated, and this 

case is remanded for further proceedings consistent with this decision. 

On October 16, 2021, Mr. Price was injured while changing a heating core on a 

truck during work for Biafore. While lying in the cab of the truck, Mr. Price struck his 

elbow on a piece of the steering column. He was seen at the emergency department of Mon 

Health Medical Center (“Mon Health”) on October 19, 2021, and complained of pain 

radiating from his elbow into his shoulder that he compared to a “constant toothache.” He 

stated that the pain was exacerbated by the extension of his arm. Mr. Price was diagnosed 

with a left elbow contusion, given a sling to wear for comfort and prescriptions for Norco 

and methylprednisolone, and referred to orthopedics. The WC-1 form was completed at 

Mon Health on October 20, 2021, and the submitted diagnosis was left elbow contusion. 

Mr. Price claims that the orthopedics referral was not initially approved by the claim 

administrator, perhaps because x-rays did not reveal any fracture. Mr. Price returned to 

Mon Health on December 1, 2021, complaining of continued left elbow pain. A repeat x1

 Petitioner is represented by Thomas D. Hall, Esq. Respondent is represented by 

Melissa M. Stickler, Esq. 

FILED

February 15, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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ray continued to show no obvious fracture, and Mr. Price was again advised to follow up 

with orthopedics. Mr. Price was seen by orthopedic surgeon Shafic Sraj, M.D., on 

December 14, 2021, when he was diagnosed with a “contusion to the lateral epicondyle 

producing a tennis elbow type reaction.” Dr. Sraj discussed initial treatment with 

conservative measures, including wearing a tennis elbow strap, stretching, and icing the 

affected area. Dr. Sraj advised Mr. Price that if he continued to have elbow pain, Dr. Sraj 

would recommend possible dry needling of the extensor tendon origin/lateral epicondyle

and said that his office would preemptively request authorization for this procedure if Mr. 

Price continued to have difficulty with the arm. Dr. Sraj advised Mr. Price to return to work 

on December 20, 2021, and Mr. Price returned to work as advised.

On December 27, 2021, the claim administrator issued a decision approving the 

claim for a left elbow strain. 

Despite trying the conservative measures recommended by Dr. Sraj, Mr. Price’s 

elbow pain continued. He returned again to Mon Health on January 4, 2022, for increased 

left elbow pain, and reported that he had been seen by orthopedics and was wearing the 

tennis elbow strap as advised, but was experiencing pain as well as some left upper 

extremity edema. Mr. Price saw Dr. Sraj again on January 25, 2022, and reported that he 

had no improvement in his pain, and that because he could not use his left arm, he was not 

able to perform his job duties as a mechanic. He denied any additional injury. Upon 

examination, Dr. Sraj noted that he still believed Mr. Price was experiencing left lateral 

epicondylitis, and after discussion with Mr. Price, Dr. Sraj performed the dry needling 

procedure. Dr. Sraj advised that he wanted to try dry needling for about three months before 

evaluating whether Mr. Price might need more invasive treatment, and informed Mr. Price 

that he would need to be off work for the next six weeks while he recovered. Dr. Sraj asked 

to see Mr. Price again in six weeks to reevaluate him.

In the meantime, the claim administrator suspended Mr. Price’s TTD benefits on 

February 3, 2022, citing his return to work on December 20, 2021, and then terminated the 

TTD benefits on March 3, 2022, citing a lack of evidence being submitted to justify the 

continued payment of TTD benefits. Mr. Price protested this closure.

Mr. Price returned to Dr. Sraj on May 3, 2022, and reported that he did not have 

much improvement after the dry needling procedure, and was continuing to have pain with 

resisted wrist extension and grasping. Dr. Sraj’s note mentions that Mr. Price was released 

from his job, and that he had undergone an IME, which, according to Mr. Price, showed 

that he had tennis elbow and needed additional treatment. (The IME report is not part of 

the appellate record and was not before the Board.) In light of the ineffectiveness of the 

dry needling, Dr. Sraj recommended proceeding to an open tenotomy of the wrist extensors 

at the elbow for lateral epicondylitis. Dr. Sraj’s note states that his office would request 

authorization for the procedure prior to performing it, and that Mr. Price would require 

about three months of recovery following the procedure to prevent recurrence. Dr. Sraj 
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filled out a work excuse for Mr. Price stating that he would need to be off work starting 

May 3, 2022, until surgery was performed, and would need three months of recovery time.

On May 13, 2022, Dr. Sraj signed a Diagnosis Update form with a primary diagnosis 

of left tennis elbow and a recommendation for an extensor tendon tenotomy at the lateral 

epicondyle.2 By order dated August 15, 2022, the Board affirmed the claim administrator’s 

March 3, 2022, order closing TTD benefits on the basis that the claim administrator 

properly suspended and then closed TTD benefits based on Dr. Sraj’s release to return to 

work. It is from this order that Mr. Price 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) 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, No. 22-ICA-10, __ W. Va. __, __, __ S.E.2d __, __, 2022 

WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

On appeal, Mr. Price argues that he followed Dr. Sraj’s recommendations for 

treatment and returned to work after December 20, 2021, but his pain worsened, so he 

sought the additional treatment as Dr. Sraj advised. When Mr. Price returned to Dr. Sraj on 

January 25, 2022, Dr. Sraj took him off work again for the next six weeks. The claim 

administrator did not reinstate TTD benefits when Mr. Price was taken back off work. 

Later, Dr. Sraj submitted the Diagnosis Update form, but the claim administrator 

2 Although the Board’s August 15, 2022, order references the existence of this 

document in its Findings of Facts, in the Discussion section the Board specifically states 

that it does not address the May 13, 2022, request to update compensable diagnoses in this 

claim, but does not explain why.
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inexplicably did not issue an acceptance of left lateral epicondylitis (tennis elbow) 

diagnosis as a compensable injury, even though, as Mr. Price alleges, the claim 

administrator approved the recommended surgery to address it (extensor tendon tenotomy 

at the lateral epicondyle.) Mr. Price argues that the claim administrator and the Board were 

aware of the medical facts regarding his ongoing care by Dr. Sraj for the treatment of tennis 

elbow, his need for additional and more aggressive treatment, and his inability to work 

after January 25, 2022. Mr. Price argues that the claim administrator deliberately ignored 

this evidence in order to deny him compensation in the form of TTD benefits and that the 

Board erred in its affirmance of this invalid decision. Mr. Price concedes that it was 

appropriate to suspend TTD benefits when he returned to work on December 20, 2021, but 

when Dr. Sraj took him off work again on January 25, 2022, the claim administrator should 

have timely reinstated the benefits. 

Biafore responds that Dr. Sraj released Mr. Price to return to work as of December 

20, 2021, and Mr. Price did, in fact, return to work. Therefore, the termination of TTD 

benefits on that basis was appropriate. Biafore asserts that Mr. Price did not submit any 

evidence to support the continuation of TTD benefits for his compensable injury of elbow 

strain, but that Mr. Price only submitted records showing treatment for epicondylitis which 

was not a compensable condition.

Upon review, we find that the Board’s order is deficient, and we find error in the 

Board’s analysis. This case involves a work-related injury that occurred when Mr. Price’s 

elbow struck a vehicle’s steering column. The diagnosis completed in the ER was “elbow 

contusion” and it was treated by Dr. Sraj as a “contusion to the lateral epicondyle producing 

a tennis elbow type reaction.” Dr. Sraj advised Mr. Price that more aggressive treatment 

might be needed if the initially conservative approach was not successful. Subsequently, 

the claim administrator approved the claim for “elbow strain” rather than “contusion,” yet 

it appears from the record that the treatment performed by Dr. Sraj, including the dry 

needling procedure, was approved. This calls into question the claim administrator’s 

position that the compensable condition of “elbow strain” and Dr. Sraj’s diagnosis of tennis 

elbow were distinct, particularly in light of the fact that Dr. Sraj sought to update the 

diagnosis and the claim administrator previously approved authorization of treatment for 

tennis elbow. As such, it is difficult to understand how the Board could note the existence 

of, yet declined to address, the May 13, 2022, Diagnosis Update that was timely submitted 

in this claim. The Board states no basis for doing so, and instead, issues a summary 

affirmance with little to no analysis.

As we review this case today, we are unable to determine whether the claim 

administrator ever acknowledged the request to add left lateral epicondylitis as a 

compensable diagnosis, or if, as Mr. Price alleges, the claim administrator approved the 

tenotomy surgery that Dr. Sraj recommends to treat that condition. If the claim 

administrator approved the surgery to address epicondylitis under the claim, then it follows 

that epicondylitis likely is a compensable condition. Furthermore, if any surgery has been
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authorized under this claim, then Mr. Price is entitled to TTD for the recovery period, 

including the dry needling procedure and the six-week recovery period ordered by Dr. Sraj. 

If epicondylitis is compensable, then it also follows that TTD benefits should be awarded 

for the documented period of time that Mr. Price has been ordered to stay off work while 

he awaits the recommended tenotomy procedure. If the request to add epicondylitis has not

been addressed by the claim administrator, then the claim administrator should be ordered 

to address the request without further delay.

Accordingly, we vacate the Board’s August 15, 2022, order and remand this case to 

the Board for further factual development and proceedings to determine the current 

compensable diagnoses and approved treatments in the claim, and an accounting of TTD 

benefits to be paid as substantiated by proper medical evidence.

Vacated and Remanded.

ISSUED: February 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen