Appeal No. 2050890) (Claim No. 2014016156)
Jack Clay, by Edwin H. Pancake, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Chojnacki Construction, Inc., by David A.
Holtzapfel, its attorney, filed a timely response.
issue on appeal is whether further temporary total disability
benefits should be granted in this claim. This appeal
originated from the August 19, 2014, and October 9, 2014,
claims administrator's decisions denying temporary total
disability benefits and closing the claim for temporary total
disability benefits, respectively. In its October 15, 2015,
Order, the Workers' Compensation Office of Judges
affirmed the decision. The Board of Review's Final Order
dated April 12, 2016, affirmed the Order of the Office of
Judges. 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
Clay, an operator, was injured in the course of his
employment when he was struck by a car entering his work site
and pinned between two vehicles. He was transported to St.
Mary's Medical Center and admitted with a diagnosis of
right thigh hematoma. Mr. Clay did not suffer any fractures.
He was taken off work until December 2, 2013. Mr. Clay saw
Paul Bowen, M.D., for a follow-up on December 9, 2013. Dr.
Bowen drained fluid from Mr. Clay's hematoma and noted he
would be off work until approximately January 1, 2014. Mr.
Clay subsequently saw Errington C. Thompson, M.D., on
December 30, 2013. Dr. Thompson also drained fluid from the
hematoma and indicated that Mr. Clay should remain off work
until January 26, 2014. Mr. Clay did not return to work on
Clay underwent an independent medical evaluation performed by
Robert B. Walker, M.D. Dr. Walker noted that diagnostic
studies and treatment were consistent with a large hematoma
in the right quadriceps muscle. Dr. Walker noted that Mr.
Clay had remnants of the hematoma with quadriceps weakness
that should resolve with a short course of physical therapy.
Dr. Walker determined Mr. Clay had not reached maximum
medical improvement but believed he would following four
weeks of physical therapy. Dr. Walker noted that Mr. Clay may
need two to three weeks of physical therapy after returning
Clay began physical therapy treatments on May 12, 2014. On
May 30, 2014, Mr. Clay saw Stanford Israelsen, M.D., for
complaints of right knee pain he had been experiencing for
six months after the injury. Dr. Israelsen diagnosed right
knee pain and right knee medial collateral ligament sprain.
He prescribed six more weeks of physical therapy and an
injection in the right knee.
19, 2014, the claims administrator granted Mr. Clay temporary
total disability benefits from January 1, 2014, through
January 26, 2014. Mr. Clay sought treatment from Tigran
Garabekyan, M.D., who referred Mr. Clay to John J. Jasko,
M.D., for a surgical opinion regarding his right knee. The
consultation took place on July 15, 2014. Dr. Jasko did not
recommend surgical intervention and noted Mr. Clay had
physical therapy scheduled through the end of July. Dr. Jasko
noted he would keep Mr. Clay off work throughout the duration
of his physical therapy, for which he needed to stay locally,
and indicated Mr. Clay would be disabled until August 7,
2014. Dr. Jasko also completed an Attending Physician's
Report indicating this information which was submitted to the
claims administrator. Mr. Clay saw Dr. Garabekyan for a
follow-up on August 8, 2014. Dr. Garabekyan's impression
was right knee pain and right knee medial collateral ligament
sprain. He recommended continued activities as tolerated and
follow-up as needed.
August 19, 2014, the claims administrator advised Mr. Clay
that the form signed by Dr. Jasko was not sufficient to grant
temporary total disability benefits for July 15, 2014,
through August 7, 2014. The reasoning given was that Dr.
Jasko was not a treating physician and the need to attend
physical therapy did not constitute disability. Additionally,
the claims administrator noted that Mr. Clay was not limited
to facilities in his hometown. Mr. Clay subsequently filed an
application to reopen the claim for temporary total
September 18, 2014, Mr. Clay underwent an independent medical
evaluation performed by Ramanathan Padmanaban, M.D. Dr.
Padmanaban's assessment was sprain of unspecified site of
the right knee and leg and contusion of the right thigh. He
determined Mr. Clay had reached maximum medical improvement
and required no further treatment. Dr. Padmanaban assessed 3%
whole person impairment. The claims administrator later
granted a 3% permanent partial disability award based on Dr.
October 9, 2014, the claims administrator closed the claim
for temporary total disability benefits as medical evidence
had not been received demonstrating that Mr. Clay continued
to be disabled. Mr. Clay subsequently testified at a
deposition on January 22, 2015. Mr. Clay testified that Dr.
Walker told him he could not return to work without an MRI.
After undergoing an MRI, Dr. Thompson recommended four weeks
of physical therapy. Mr. Clay testified that he returned to
work in April of 2014 for approximately two and a half weeks
before he ceased working in order to continue with physical
therapy. Mr. Clay attempted to work in Princeton, West
Virginia with his employer, but his physical therapy
treatments were located in Wayne County, West Virginia. Mr.
Clay stated that he did not attempt to look for physical
therapy facilities in Princeton, West Virginia because the
job site was far away and he had to attend appointments three
days a week. The Princeton job only operated Monday through
Thursday. He believed that between driving time and the
length of the appointments, he would not have much time to
work. Mr. Clay testified that he believed he could have
performed his job while he was off but would have been much
slower than normal. He admitted that neither Dr. Garabekyan
nor his physical therapist had taken him off work.
14, 2015, Andrew Chojnacki, the president of Chojnacki
Construction, Inc., completed an affidavit regarding the
injury and Mr. Clay's employment. Mr. Chojnacki stated
that he knew Mr. Clay sustained an injury in the course of
his employment and that Mr. Clay was released to return to
work on January 27, 2014, but did not. Mr. Chojnacki stated
that work was available to Mr. Clay throughout 2014 and he
would have made every effort to accommodate any physical
restriction and necessary leave of absence. Mr. Chojnacki
indicated he never would have excluded Mr. Clay from any job
he was able to perform.
October 15, 2015, the Office of Judges affirmed the claims
administrator's decisions denying further temporary total
disability benefits and closing the claim for temporary total
disability benefits. The Office of Judges noted that Dr.
Walker's report stated that the diagnostic studies and
treatment were consistent with a large hematoma in the right
quadriceps muscle. Dr. Walker indicated that Mr. Clay would
reach maximum medical improvement after four weeks of
physical therapy. The Office of Judges also noted that Mr.
Clay had received a permanent partial disability award. There
was no evidence that the right knee or right hip had been
added as compensable components of the claim. The Office of
Judges found that the claims administrator had not erred and
affirmed its decisions. The Board of Review affirmed the
Office of Judges' Order on April 12, 2016.
Board of Review's decision is affirmed. Temporary total
disability benefits are terminated at the earlier of a
claimant reaching maximum medical improvement, a claimant
being released to return to work, or a claimant returning to
work. Dr. Thompson indicated that Mr. Clay could return to
work on January 27, 2016. No other doctor disputed this
recommendation until Dr. Jasko took Mr. Clay off work for the
duration of his physical therapy, which had been extended due
to right knee and right hip pain. However, neither the right
knee nor the right hip have been added as compensable
components of the claim. Dr. Jasko also failed to provide
reasoning as to why Mr. Clay should remain off work during
his physical therapy and why he needed to stay locally for
its duration. Further, Dr. Jasko is not the treating
physician in this claim. Neither Mr. Clay's treating