Appeal No. 2051194) (Claim No. 2014033241)
Tim Hollington, by Robert L. Stultz, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. B E Aerospace, Inc., by Katherine H. Arritt,
its attorney, filed a timely response.
issue on appeal is whether Mr. Hollington should be granted
temporary total disability benefits. The claims administrator
denied physical therapy and temporary total disability
benefits in two decisions dated August 31, 2015. The claims
administrator also denied a lumbar MRI, Flexeril, and a
differential hip injection on December 14, 2015. The Office of Judges affirmed the
decisions in its March 25, 2016, Order. The Order was
affirmed by the Board of Review on August 2, 2016. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Hollington, a truck driver, was injured in the course of his
employment on April 28, 2014, in a motor vehicle accident.
Treatment notes dated May 12, 2014, by Benjamin Moorehead,
M.D., indicate Mr. Hollington was treated for a work injury.
He reported pain in his left hip and a burning sensation in
the thigh. Driving long distances caused increased his hip
pain. The impression was left hip/pelvic strain involving the
left SI joint. Dr. Moorehead referred Mr. Hollington for
May 14, 2014, through June 20, 2014, Mr. Hollington received
physical therapy from Dynamic Physical Therapy. He initially
presented with symptoms consistent with sacroiliac
dysfunction and thoracic sprain/strain following a
work-related motor vehicle accident. The diagnoses were
listed as pain in pelvic region and thigh, osteitis
condensans, and sprain of the sacroiliac region. The claim
was held compensable for abrasions to the bilateral knees and
a closed head injury. Mr. Hollington was not eligible for
temporary total disability benefits as he was disabled for
less than three days.
September 11, 2014, Mr. Hollington testified in a deposition
that he was driving a truck, took a turn too fast, and
flipped the truck. He had pain in the left side of his body
including the shoulder, ribs, and hip. He stated that he was
improving with treatment but treatment was then stopped.
Since therapy ended, he has experienced increased pain in his
ribs and a burning sensation from his lower back to his left
hip. John Lewis stated in an affidavit on December 18, 2014,
that he is the Accommodations Manager for B E Aerospace, Inc.
He stated that he spoke with Mr. Hollington several times and
requested an out of work note from a physician. Mr.
Hollington hds not contacted Mr. Lewis or anyone else with
the employer regarding returning to work.
August 21, 2014, the claims administrator denied a request to
add lumbar sprain and hip sprain to the claim. On June 12,
2015, the Office of Judges modified the claims
adminstrator's June 4, 2014, decision and granted
temporary total disability benefits from May 12, 2014,
through June 22, 2014. It also reversed the claims
administrator's August 21, 2014, decision and accepted
hip sprain as a compensable component of the claim. It also
authorized a left hip MRI.
Hollington completed a reopening form for temporary total
disability benefits on July 2, 2015. Dr. Moorehead listed the
diagnosis as left hip sprain with pain and burning over the
hip and thigh. He recommended an MRI and physical therapy.
Mr. Hollington could return to work for sedentary work only.
Dr. Moorehead then stated that he was temporarily and totally
disabled from April 28, 2014, until August 31, 2015. A
treatment note by Dr. Moorehead dated July 29, 2015,
indicates Mr. Hollington had continued symptoms with no
significant improvement. He diagnosed left hip and pelvic
sprain/strain and requested physical therapy and an MRI
arthrogram of the left hip. Mr. Hollington was temporarily
and totally disabled through the end of August.
31, 2015, Sushil Sethi, M.D., opined in an independent
medical evaluation that Mr. Hollington has had more than
sufficient physical therapy. He stated that Dr. Moorehead did
not provide any examination findings and there were no
specific objective physical findings that would require
physical therapy. On examination, Dr. Sethi found no
residuals from the compensable injury that would require
physical therapy. There were also no new and distinct
findings that would require temporary total disability from
June 22, 2014, through August 31, 2015. The compensable
conditions would have resolved prior to June 22, 2014. Dr.
Sethi determined Mr. Hollington had reached maximum medical
improvement and assessed 3% impairment.
Moorehead stated in a September 3, 2015, letter that Mr.
Hollington remained unable to work pending the approval of an
MRI and physical therapy. On January 11, 2016, Dr. Moorehead
completed an attending physician's form stating that Mr.
Hollington was not at maximum medical improvement. His
estimated period of disability was from April 28, 2014,
through July 1, 2016.
claims administrator denied a request for physical therapy on
August 31, 2015. In a separate decision on the same day, the
claims administrator also denied temporary total disability
benefits. On December 14, 2015, the claims administrator
denied a lumbar MRI, the medication Flexeril, and a
differential hip injection. The Office of Judges affirmed all
three decisions in its March 25, 2016, Order.
Office of Judges found that, per Dr. Sethi's independent
medical evaluation, Mr. Hollington was at maximum medical
improvement as of July 31, 2015. The Office of Judges further
determined that the lumbar spine is not a compensable
condition in this claim. The issue was previously before the
Office of Judges on June 12, 2015, when it affirmed a denial
of the addition of lumbar sprain to the claim. The Office of
Judges next found that the December 14, 2015, claims
administrator's decision denying a lumbar MRI, Flexeril,
and differential hip injection is based on a December 4,
2015, request from West Virginia Medicine. The request is not
part of the record, nor are there any reports or treatment
notes from Dr. Moorehead corresponding with that date. The
Office of Judges therefore found that there is insufficient
evidence to support a reversal of the claims
Office of Judges found that the claims administrator's
denial of temporary total disability benefits was based on
Dr. Sethi's independent medical evaluation, which found
Mr. Hollington to be at maximum medical improvement. Also,
the requested period of temporary total disability is outside
of the appropriate period of disability for the allowed
conditions. The Office of Judges found it significant that
there are no treatment notes or medical reports indicating a
physical examination of Mr. Hollington from Dr. Moorehead, or
any other provider, for almost a year prior to the July 2,
2015, request for temporary total disability. Though Dr.
Moorehead completed a reopening application on July 2, 2015,
it is not clear that the claim was even closed at that time.
The Office of Judges further found that the date of
examination on which the reopening application was based is
July 10, 2014. Dr. Moorehead signed the application on July
2, 2015, nearly a year later. Dr. Moorehead's treatment
note from July 2, 2015 states that Mr. Hollington was just
there to have forms filled out and does not indicate that
there was a physical examination. At that time, Dr.
Moorehead, again with no physical examination for a year,
also requested physical therapy and an MRI. The Office of
Judges determined that Dr. Sethi performed an independent