### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED

February 23, 2018

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS 

### LEONARD CANTLEY, Claimant Below, Petitioner OF WEST VIRGINIA



### vs.) No. 17-0867 (BOR Appeal No. 2051938) (Claim No. 2015016158)

BECKLEY STEEL, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Leonard Cantley, by Reginald D. He nry, his attorney, appe als the decision of the West Virginia Workers’ Compensation Board of Review. Beckley Steel , Inc., by Daniel G. Murdock, its attorney, filed a timely response.

The issue on appeal is the proper period of temporary total disability benefits to be awarded to Mr. Cantley. On J une 10, 2016, the claims administ rator denied a request for temporary total disability benefits from January 20, 2015, through May 9, 2016. The Office of Judges reversed the decision in its March 13, 2017, Order, and granted temporary total disability benefits from January 20, 2015, through May 9, 2016. 1 The Order was modified by the Board of Review on September 1, 2017, to grant benefits from May 9, 2016, through June 16, 2016. The Court has carefully reviewed the records, writ ten 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Cantley, a truck loader, was injured in the course of his employment on November 5, 2014, while lifting a piece of iron. The employer’s report of injury indicates Mr. Cantley was

1 Based on a reading of the decision in its entirety, the Office of Judges seems to have mistakenly put the start date of temporary total disability benefits as January 20, 2016, when it intended the date to be January 20, 2015.

1injured on November 5, 2014, and reported the inju ry to his supervisor, Robert Palmer. The injury was listed as back sprain/strain. The empl oyee’s and physician’s report of injury indicates the claimant was lifting a piece of iron when he felt something pop in his back. He was diagnosed with a lumbar sprain and released to return to modified duty on November 10, 2014, with restrictions in bending/stooping, lifting, kneeling, walking, and standing.

Prior to the compensable injury, Mr. Cantley had a history of lower back injuries. A lumbar x-ray taken on March 3, 2010, showed spondyl osis at multiple levels including T12-L6 with loss of disc space height at every level. There were multiple interbody disc herniations and it was noted that the claimant may have Scheuerm ann’s disease. There was also facet arthropathy at L4-5 and L5-S1. A November 13, 2010, lumbar x-ray was compared to the prior x-ray. The impression was osteoarthritic chan ges of the lumbar articular facet joint, diffuse narrowing of lumbar intervertebral disc spaces, and no eviden ce of acute fractures. Lumbar x-rays taken on May 19, 2013, showed chronic degenerative disc disease.

Mr. Cantley testified in a deposition on June 10, 2015, that on the date of injury, he picked up a piece of iron and felt a pop in his back. He finished his shift out of fear of losing his job. He attempted to work the following day but quickly realized he wa s unable to perform his duties. He filed an accident repor t and sought treatment at MedExpr ess. Mr. Cantley stated that he had x-rays completed but authorization for an MRI was denied. He stated that he then went to Raleigh General Hospital where a CT revealed bulging discs. Mr. Cantley admitted that he had previously injured his back at work and was off fo r four days, but asserted that the current injury

felt different in that he can hard ly pick his legs up now. He stated that prior to the November 5, 2014, injury, he was not having any back probl ems and was on no medica tion. He was not under a physician’s care at the time of the deposition.

On January 13, 2016, ChuanFang Jin, M.D., comple ted a file review report in which she opined that there was no persuasive medical evid ence to support the assumption that there was a work-related injury to the lumbar spine. She asserted that Mr. Cantley’s clinical symptoms are part of the natural history of degenerative lumb ar disc disease, as shown on a March 3, 2010, xray. Dr. Jin opined that Mr. Cantley’s treatment history si nce 2001 shows chronic degenerative disc disease gradually worsenin g over time. She found no diagnosis for a workers’ compensation claim since the symptoms are difficult to differentia te from a mechanical strain type of injury. She opined that if an injury did occur, it would have been a sprain/strain type of injury, which

heals in a few weeks or months. Dr. Jin stated that Mr. Cantley’s current symptoms are unlikely from a sprain and are likely due to chronic de generative disc disease, which commonly causes chronic symptoms. She recommended no additional medical treatment.

A treatment note from MedExpress dated Ma y 9, 2016, indicates Mr. Cantley was seen for follow-up for his compensable injury. The a ssessment was lumbar sprain. Mr. Cantley was taken off of work until after an MRI and appointme nt with Rajesh Patel, M.D. On June 16, 2016, Paul Bachwitt, M.D., performed an independent medical evaluation and found that Mr. Cantley had reached maximum medical improvement. He found no clinical findings of a herniated disc on his examination. Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. Bachwitt found 5% lumbar spine impairment due to

2the compensable injury. He stated that it would not be unreasonable to perform a lumbar MRI,

but he doubted it would show a nything. Dr. Bachwitt further opined that a neurosurgical referral was unnecessary and that Mr. Cantley’s current complaints were related to his multiple prior back injuries and preexisting degenerative changes.

A lumbar MRI performed on August 30, 2016, show ed disc herniations and degeneration at L5-S1, L2-3, L3-4, and L4-5. It also showed osteoarthritic verteb ral body lipping and facet hyperostosis. Mr. Cantley stated in a Septembe r 14, 2016, affidavit that he sought treatment at MedExpress until he was forced to discontinue tr eatment because the claim was rejected. Once it was held compensable, he resumed treatment.

On June 10, 2016, the claims administrator denied a request for tempor ary total di sability benefits from January 20, 2015, through May 9, 2016. On March 13, 2017, the Office of Judges reversed the decision and granted temporary to tal disability benefits from January 20, 2015, through June 16, 2016. It found that the evidence of record fails to show that Mr. Cantley was

ever released to return to work after January 9, 2015. Though there are no treatment notes between that date and May 9, 201 5, Mr. Cantley explained that he was forced to discontinue

treatment because the claim was in itially rejected. He resumed trea tment days after the claim was held compensable. On May 9, 2016, a Workers’ Compensation Duty Form completed by MedExpress indicated Mr. Cantley was unable to work until an MRI and an appointment with Dr. Patel were completed. He was then found to be at maximum medical improvement by Dr. Bachwitt on June 16, 2016. The Office of Judges therefore concluded that Mr. Cantley was entitled to temporary total di sability benefits from Janua ry 20, 2015, through June 16, 2016. The Office of Judges stated that its decision was based on the fact that there is no credible, reliable evidence that Mr. Cantley reached maximum medi cal improvement, was released to return to work, or returned to work before June 16, 2016.

The Board of Review adopted the findings of f act and conclusions of law of the Office of Judges and modified the Office of Judges Order to grant temporary total disa bility benefits from May 9, 2016, through June 16, 201 6. The Board of Review found that Mr. Cantley requested temporary total disability benefits from January 20, 2015, through May 9, 2016, and the Office of Judges awarded benefits for that time period. However, the Board of Review found that West Virginia Code § 23-4-1c(c) (2009) provides that temporary total disability benefits are to be awarded upon receipt of medical evidence justifying the payment of such benefits. In this case,

the Board of Review found no medical evidence to support the Office of Judges’ decision as

there are no treatment record s between January 9, 2015, and May 9, 2016. On May 9, 2016, Mr. Cantley was treated at MedExpres s and taken off of work until he could receive an MRI and have an appointment with Dr. Patel. On June 16, 2016, he was found to be at maximum medical improvement. The Board of Review therefore c oncluded that Mr. Cantle y was temporarily and totally disabled from May 9, 2016, through June 16, 2016.

After review, we agree with the reasoning and conclusions of the Board of Review. It is the responsibility of the claimant to show by a pr eponderance of the evidence that he is entitled to temporary total disability benefits. In this case, Mr. Cantley failed to provide sufficient

3evidence to show that he was temporarily and totally disabled for the period from January 20, 2015, through May 9, 2016.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: February 23, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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