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. Henry, his attorney, appeals 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 June 10, 2016, the claims administrator 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, 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. 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. 

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injured on November 5, 2014, and reported the injury to his supervisor, Robert Palmer. The 

injury was listed as back sprain/strain. The employee’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 spondylosis 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 Scheuermann’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 changes of the lumbar articular facet joint, diffuse narrowing of 

lumbar intervertebral disc spaces, and no evidence 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 was unable to perform his 

duties. He filed an accident report and sought treatment at MedExpress. 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 for four days, but asserted that the current injury 

felt different in that he can hardly pick his legs up now. He stated that prior to the November 5, 

2014, injury, he was not having any back problems and was on no medication. He was not under 

a physician’s care at the time of the deposition. 

On January 13, 2016, ChuanFang Jin, M.D., completed a file review report in which she 

opined that there was no persuasive medical evidence 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 lumbar disc disease, as shown on a March 3, 2010, xray. Dr. Jin opined that Mr. Cantley’s treatment history since 2001 shows chronic degenerative 

disc disease gradually worsening over time. She found no diagnosis for a workers’ compensation 

claim since the symptoms are difficult to differentiate 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 degenerative disc disease, which commonly causes 

chronic symptoms. She recommended no additional medical treatment. 

A treatment note from MedExpress dated May 9, 2016, indicates Mr. Cantley was seen 

for follow-up for his compensable injury. The assessment was lumbar sprain. Mr. Cantley was 

taken off of work until after an MRI and appointment 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 

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

but he doubted it would show anything. 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, showed disc herniations and degeneration 

at L5-S1, L2-3, L3-4, and L4-5. It also showed osteoarthritic vertebral body lipping and facet 

hyperostosis. Mr. Cantley stated in a September 14, 2016, affidavit that he sought treatment at 

MedExpress until he was forced to discontinue treatment because the claim was rejected. Once it 

was held compensable, he resumed treatment. 

On June 10, 2016, the claims administrator denied a request for temporary total disability 

benefits from January 20, 2015, through May 9, 2016. On March 13, 2017, the Office of Judges 

reversed the decision and granted temporary total 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, 2015, Mr. Cantley explained that he was forced to discontinue 

treatment because the claim was initially rejected. He resumed treatment 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 disability benefits from January 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 medical improvement, was released to return to 

work, or returned to work before June 16, 2016. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and modified the Office of Judges Order to grant temporary total disability benefits from 

May 9, 2016, through June 16, 2016. 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 records between January 9, 2015, and May 9, 2016. On May 9, 2016, Mr. 

Cantley was treated at MedExpress 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 concluded that Mr. Cantley 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 preponderance of the evidence that he is entitled 

to temporary total disability benefits. In this case, Mr. Cantley failed to provide sufficient 

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evidence 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 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: 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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