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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

ROBERT W. SMITH,

Claimant Below, Petitioner

vs.) No. 18-0601 (BOR Appeal No. 2052296)

(Claim No. 2014034019)

 

WEST VIRGINIA UNIVERSITY, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Robert W. Smith, pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. West Virginia University, by H. Dill Battle III, its attorney, filed 

a timely response.

The issue on appeal is reopening of the claim for temporary total disability benefits. The 

claims administrator denied the request to reopen the claim on January 31, 2017. The Office of 

Judges affirmed the decision in its October 12, 2017, Order. The Order was affirmed by the Board 

of Review on March 29, 2018. 

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. Smith, a night monitor, was injured in the course of his employment on February 10, 

2014. The Employee’s and Physician’s Report of Injury indicates Mr. Smith slipped on ice while 

making rounds at a dorm. The physician’s section was completed by Susan Schmitt, M.D., and the 

diagnoses were listed as left knee, right shoulder, left wrist, and right ankle sprains. The claim was 

held compensable for an injury to the right shoulder, left knee, and left ankle on May 23, 2014.

Treatment notes by Tom Ghobrial, M.D., indicate Mr. Smith sought treatment for his left 

knee. On June 25, 2014, he reported that he slipped on ice at work and hyper flexed his left knee. 

Mr. Smith stated that he had pain, catching, and locking in his knee. He was given a knee brace 

FILED

April 25, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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and medication. It was noted that Mr. Smith had right knee surgery in 1994. A left knee MRI was 

noted as showing a large medial meniscal tear and surgery was recommended. A left knee medial 

meniscus repair was performed on July 24, 2014.

Joseph Grady, M.D., performed an independent medical evaluation on July 21, 2015, in 

which he noted tenderness in the right shoulder and crepitus in both knees. Dr. Grady diagnosed 

status post left medial meniscus tear, resolved left wrist sprain, right shoulder pain with rotator 

cuff tendinitis without a definite tear, and right ankle strain. He found that Mr. Smith had not 

reached maximum medical improvement and recommended physical therapy for the right shoulder 

and left ankle. 

In a September 2, 2015, treatment note Susan Schmitt, M.D., found that Mr. Smith’s left 

ankle symptoms had increased. A right shoulder MRI showed tendinitis, bursitis, chronic 

degenerative changes, and mild chondromalacia. Mr. Smith was discharged from physical therapy 

for the right shoulder due to an increase in symptoms. Dr. Schmidt diagnosed rotator cuff sprain, 

wrist sprain, ankle pain, and derangement of the medial meniscus. She requested a physical therapy 

evaluation for the left ankle. 

In a November 17, 2015, independent medical evaluation, Dr. Grady noted that Mr. 

Smith’s left knee was stable. His left wrist was unremarkable. Dr. Grady noted significant crepitus 

in both knees as well as reduced range of motion in the left knee. Dr. Grady found that Mr. Smith

had reached maximum medical improvement. He stated that there was no need for any further 

maintenance care for the compensable injury but Mr. Smith would likely need it for his preexisting 

degenerative changes, particularly in the left knee. Dr. Grady assessed 2% right shoulder 

impairment, 1% left ankle impairment, and 4% left knee impairment for a total of 7% whole person 

impairment. 

Mr. Smith followed up with Dr. Ghobrial’s office on November 18, 2015, and it was noted 

that his condition was unchanged. He was diagnosed with left knee osteoarthritis and left knee 

effusion. A cortisone injection was administered. A left knee x-ray taken that day showed 

generalized osteoarthritis without evidence of an acute process. Mr. Smith was granted a 7% 

permanent partial disability award on December 9, 2015.

In a January 6, 2016, record review, James Dauphin, M.D., recommended that a request 

for Celebrex be denied. Dr. Dauphin noted that Dr. Grady concluded that Mr. Smith needed no 

further maintenance care. Dr. Dauphin opined that the medication would be to treat preexisting 

conditions rather than a compensable condition. Dr. Schmitt completed a medical verification form

on August 29, 2016, in which she stated that Mr. Smith had generalized osteoarthritis of the hips, 

knee, and shoulder. She stated that he was unable to work from May 16, 2016, through May 16, 

2017. Mr. Smith returned on May 22, 2017, and Dr. Schmitt found that he had osteoarthritis in 

multiple joints, chronic low back pain, chronic joint pain, degenerative disc disease, and 

spondylosis. His main problem was lumbar pain that radiated into his knee. Dr. Schmitt found that 

Mr. Smith’s chronic conditions were stable. 
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The claims administrator denied a reopening of the claim for temporary total disability 

benefits on January 31, 2017. The Office of Judges affirmed the decision in its October 12, 2017, 

Order. It found that Mr. Smith made his reopening request on January 11, 2017; however, a claim 

reopening form was not completed and a specific request to reopen the claim was not submitted to 

the Office of Judges. As a result, the Office of Judges stated that no medical evidence was 

submitted specifically stating that an aggravation or progression of the compensable injury had 

occurred. Mr. Smith argued that Dr. Grady stated in his November 17, 2015, evaluation that he

continued to have symptoms. However, the Office of Judges determined that on September 26, 

2016, Dr. Grady stated that any symptoms or further treatment that may be needed would be for 

noncompensable preexisting arthritic conditions. Lastly, the Office of Judges found that though 

Dr. Schmitt’s May 22, 2017, treatment note provided a detailed summary of Mr. Smith’s

conditions, many of the impairments listed are not compensable, such as osteoarthritis, chronic 

pain, spondylosis, and degenerative disc disease. Further, Dr. Schmitt offered no opinion as to 

whether Mr. Smith’s temporary total disability is related to compensable or noncompensable 

conditions. Therefore, while he submitted evidence that he is unable to work, Mr. Smith failed to 

show that his temporary disability is due to the compensable injury. The Board of Review adopted 

the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on March 

29, 2018.

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

affirmed by the Board of Review. Pursuant to West Virginia Code § 23-5-3 (2009), in order to 

reopen a claim, a claimant must make an application in writing showing a progression or 

aggravation of the compensable condition or some other fact or facts which were not considered 

previously that would entitle the claimant to greater benefits than he or she had already received. 

In this case, Mr. Smith has shown no aggravation or progression of his condition that would entitle 

him to a reopening of his claim. While he submitted evidence that he is unable to work, there is no 

indication in the record that his temporary total disability is a result 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: April 25, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison