MICHELLE D. MASTERS, Claimant Below, Petitioner
GREENBRIER HOTEL CORPORATION, Employer Below, Respondent
Appeal No. 2050919) (Claim No. 2013024698)
Michelle D. Masters, by Patrick K. Maroney, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Greenbrier Hotel Corporation,
by James W. Heslep, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated March 3, 2016, in which the Board affirmed an October
21, 2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's July 16, 2015, decision to deny a
reopening request for temporary total disability benefits.
The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
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
Masters, a culinary instructor for Greenbrier Hotel
Corporation, injured her neck and shoulder on July 11, 2012,
while lifting a mini fridge onto a countertop. The claims
administrator held the claim compensable on July 18, 2012,
for a sprain of the shoulder/arm and neck as well as
overexertion and strenuous movement. An MRI performed the
same day revealed a left lateral C5-C6 disc protrusion
creating nerve root encroachment, a small posterior central
and left paramidline C6-C7 disc protrusion creating no nerve
root displacement, and a small focal posterior central T1-T2
disc protrusion creating no cord compression.
Thompson, M.D., of the Greenbrier Clinic, examined Ms.
Masters on July 20, 2012, and stated that she suffered from
cervical disease. He suggested physical therapy and advised
Ms. Masters to remain off work until further evaluation.
Bruce Guberman, M.D., completed an independent medical
evaluation on October 18, 2012, in which he opined that her
treatment up to this point had been medically necessary and
appropriate. Dr. Guberman believed that Ms. Masters was not
at her maximum degree of medical improvement in the cervical
spine and would benefit from follow-ups with her treating
physician and a nerve conduction study. Dr. Guberman believed
Ms. Masters's shoulders were doing well and are not the
source of her problems. He found her to be at maximum medical
improvement in relation to her shoulders and opined that she
did not suffer any whole person impairment related to them.
23, 2013, Joseph Grady, M.D., performed an independent
medical evaluation which he noted that Ms. Masters had
already completed forty-four physical therapy sessions up to
this point with reports that they provided some relief. He
noted that she had an MRI and a nerve conduction study as
well. She has also been treated with oral steroids and
returned to work after a few weeks on a part-time basis. He
concluded that it would be reasonable for her to consider
having injections in her neck in light of her structural
abnormalities. Dr. Grady opined that if she did not wish to
pursue those, or if they cannot be performed, Ms. Masters
would likely then be at maximum medical improvement. He
believed the use of a nonsteroidal anti-inflammatory
medication, such as Naproxen, was reasonable. He declined to
provide an impairment rating for her neck at that time and
found no whole person impairment for the shoulders.
Masters underwent cervical epidural injections on January 14,
2014. On May 12, 2014, A.E. Landis, M.D., performed an
independent medical evaluation. Dr. Landis opined that she
was at maximum medical improvement in relation to all her
injuries. However, he opined that Ms. Masters would require
some ongoing treatment to maintain her maximum degree of
medical improvement. Dr. Landis recommended the regular use
of a home cervical traction device. He assessed 8% whole
Thaxton, M.D., performed a physician's review on November
16, 2014, which addressed the reasonableness of the requested
repeat cervical MRI, cervical nerve block, and occupational
therapy. Dr. Thaxton did not recommend payment for the repeat
cervical MRI and occupational therapy. She did recommend
payment of the repeat cervical nerve block. Dr. Thaxton
opined that the physical therapy in this claim has been
excessive and exceeds the guidelines set forth in West
Virginia Code of State Rules § 85-20 (2006). She
concluded that occupational therapy is no longer reasonable
or within the treatment guidelines. Dr. Thaxton stated that
an MRI performed now would not be reflective of the acute
injury from 2012, and therefore should not be approved.
22, 2015, Celia McLay, M.D., filed an application to reopen
the claim for temporary total disability benefits alleging an
aggravation and/or progression of her compensable injury. Dr.
McLay completed and signed the physician's portion on
June 29, 2015, and opined that Ms. Masters suffered from the
listed diagnoses of cervicalgia, cervical disc herniation
with radiculopathy, fibromyalgia, neck pain, right shoulder
and upper back pain, upper extremity weakness, numbness and
tingling in the hands with decreased shoulder abduction, and
pain with upper extremity use. On July 16, 2016, the claims
administrator denied the application to reopen the claim for
temporary total disability benefits.
August 20, 2015, Ms. Masters was deposed. She testified about
her injury and the treatment she has received thus far. She
was originally treated at the Greenbrier clinic and then she
had vocational rehabilitation. She returned to work in a
modified form in October of 2012 and started full duty
sometime thereafter. Around January of 2015 her workload
increased which she stated put more strain on her neck.
October 21, 2015, the Office of Judges concluded that Ms.
Masters was not temporarily and totally disabled as a result
of her July 11, 2012, injury. The Office of Judges noted that
Ms. Masters's treating physician, Dr. McLay, asserted
that she was temporarily and totally disabled because of the
diagnoses of cervicalgia, cervical disc herniation with
radiculopathy, fibromyalgia, neck pain, right shoulder and
upper back pain, upper extremity weakness, numbness and
tingling in the hands with decreased shoulder abduction, and
pain with upper extremity use. The Office of Judges found
that none of the diagnoses listed in the reopening
application are compensable conditions of this claim. The
Office of Judges also noted that Ms. Masters reached maximum
medical improvement on May 12, 2014, for the compensable
injury. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order on March 3, 2016.
review, we agree with the consistent decisions of the Office
of Judges and Board of Review. The compensable diagnoses in
this claim are sprain of the shoulder/arm, sprain of the
neck, and overexertion/strenuous movement. Ms. Masters
reached maximum medical improvement for these injuries.
Additionally, Ms. Masters failed to demonstrate that she
sustained an aggravation or progression of her compensable
injuries. Therefore, she is not entitled to a reopening of
her claim for further consideration of temporary total
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 ...