Appeal No. 2051439 (Claim No. 2015020836)
Vicki Gunter, by John H. Shumate Jr, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Summers County Board of Education, by Marion
E. Ray, its attorney, filed a timely response.
issue on appeal is whether the claim was properly closed for
temporary total disability benefits. The claims administrator
closed the claim for temporary total disability benefits on
December 7, 2015, and stated that no temporary total
disability benefits would be awarded. The Office of Judges
affirmed the claims administrator's decision on July 18,
2016. The Board of Review affirmed the Order of the Office of
Judges on November 9, 2016. 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
Gunter, a kitchen worker for Summers County Board of
Education, injured her back when she fell at work on January
29, 2015. She sought treatment at Summers County ARH Hospital
where she was diagnosed with a back sprain. The attending
physician did not recommend that she miss any work. A report
of injury completed on January 29, 2015, asserted that Ms.
Gunter was cleaning pans and wrapping them in foil when she
turned around and slipped on the floor, injuring her back.
The physician's portion was completed at Summers County
ARH Hospital. Ms. Gunter was diagnosed with a back sprain as
the result of an occupational injury. The physician did not
state that she should miss any work.
February 2, 2015, Ms. Gunter was treated at Family Care
Clinic where she was prescribed medications and advised to
follow-up with her family doctor. Ms. Gunter reported that
her lower back pain continued. Another report from a
follow-up on February 9, 2015, from the Family Care Clinic
indicated that Ms. Gunter reported continued pain in her
lower back radiating down the right thigh made worse with
bending. Ms. Gunter received an injection of lidocaine and
betamethasone in the right SI joint, which she tolerated
well. An MRI of the lumbar spine was ordered. A physical
therapy record dated February 20, 2015, indicated that Ms.
Gunter was to attend physical therapy at Appalachian Regional
Healthcare three times a week for four weeks.
12, 2015, report from the Family Care Clinic indicated that
Ms. Gunter was participating in physical therapy as directed.
The low back pain eased some and was well controlled using
Flexeril and Advil. The pain radiated to both legs. An MRI
showed mild degenerative disc disease and a mild bulging disc
in the lumbar spine. Ms. Gunter was advised to continue
physical therapy and remain off work for two more weeks until
re-evaluation. A report from John Schmidt, M.D., dated May 6,
2015, stated that Ms. Gunter was seen in consultation for
evaluation of low back and right leg pain. Ms. Gunter's
leg pain radiated posteriorly down her leg to just below the
knee and she also felt that her right leg was weak. The pain
started after a fall at work in January and progressively
worsened. Ms. Gunter rated the pain as six out of ten and
described it as aching and dull. The pain was made worse by
sitting or standing too long as well as with physical
activity. Ms. Gunter ambulated with non-antalgic gait. Her
range of motion of the joints was full and painless without
instability, normal tone without atrophy, no swelling or
tenderness, deep tendon reflexes were equal and intact, and
there were no pathologic reflexes, spasticity, or clonus. The
straight leg test was noted to have produced back pain. The
impression was low back pain and lumbar radiculopathy. The
recommendation was for referral to pain management to see if
Ms. Gunter's pain could be improved and to continue
physical therapy. If her pain had not improved with physical
therapy or pain management, surgical treatment options were
to be discussed.
26, 2015, report from the Family Care Clinic stated that Ms.
Gunter had been out of physical therapy for over a week and
reported increased stiffness and difficulty lifting her right
leg. She saw Dr. Schmidt and had been referred from his
office for injections to the lumbar area. Dr. Schmidt's
office also recommended continued physical therapy. The
physical therapist at Summers ARH reported that Ms. Gunter
did not meet her goal of reduced pain, but seemed to be
functionally improving. The assessment was a lumbar sprain
and radiculopathy. On July 14, 2015, Ms. Gunter was seen by
Brian Yee, M.D. She complained of constant pain of the right
lower back which radiated down the right buttock and
posterior right leg to the knee. She was evaluated by Dr.
Schmidt who recommended conservative treatment prior to
surgery. She tried and failed physical therapy. Ms.
Gunter's effort during motor strength testing was
extremely poor. The assessment was lumbar sprain, lumbar disc
degeneration, and lumbar radiculopathy. Dr. Yee examined Ms.
Gunter on July 15, 2015. His report indicated that he
diagnosed a lumbar sprain, radiculopathy, and sacroiliac
joint tenderness on right side. Ms. Gunter was given another
injection into the right sacroiliac joint. A September 24,
2015, report noted that a nerve conduction study performed
and interpreted as normal. Dr. Yee examined Ms. Gunter again
on October 15, 2015, and diagnosed lumbar sprain, lumbar disc
degeneration, bulging lumbar disc, and lumbar radiculopathy.
Dr. Yee noted that Ms. Gunter had significant excessive pain
behaviors and had more pain and weakness than would be
expected based on imaging studies. She had no significant
findings on the nerve conduction study and had minimal
findings on MRI.
claims administrator closed the claim for temporary total
disability benefits on December 7, 2015, and found that
because Ms. Gunter was not disabled for three days, she was
not to receive any temporary total disability benefits. Ms.
Gunter was examined by Stanley Day, M.D., on April 25, 2016.
As part of the report there was a section that stated that
Dr. Day asserted she was temporarily and totally disabled
from February 2, 2015, through June 18, 2015, and from August
10, 2015, through November 16, 2015.
18, 2016, the Office of Judges determined that Ms. Gunter was
not entitled to temporary total disability benefits because
she was disabled for less than three days. The Office of
Judges found that any remaining symptoms are related to
pre-existing issues. The Office of Judges also found that the
physician's portion of the report of injury stated that
Ms. Gunter was diagnosed with back sprain and there was no
mention that Ms. Gunter needed to miss any work. The Office
of Judges found that while the Order approving the claim was
not submitted, it appeared that the only compensable
condition is back sprain. The Office of Judges noted that a
report dated February 2, 2015, indicated Ms. Gunter should be
off work for one week; however, that report contained an
additional diagnosis of radiculopathy, which is not a
compensable condition. The Office of Judges noted that Dr.
Yee's report contained diagnoses of a lumbar sprain,
radiculopathy, and sacroiliac joint tenderness on right side.
Another report dated September 24, 2015, from Family Care
Clinic, gave diagnoses of lumbar sprain, radiculopathy,
sacroiliac pain, and muscle weakness of leg. Dr. Yee's
report dated October 15, 2015, gave diagnoses of lumbar
sprain, lumbar disc degeneration, bulging lumbar disc, and
lumbar radiculopathy. Again, the Office of Judges noted that
there was no evidence that any condition other than lumbar
sprain is compensable. Additionally, Dr. Yee noted that Ms.
Gunter had significant, excessive pain behaviors and had more
pain and weakness than would be expected based on imaging
studies. She had no significant findings on the nerve
conduction study and had minimal findings on MRI. The Office
of Judges found that Ms. Gunter's current condition is
due to non-compensable conditions, and it is therefore found
that closing the claim for temporary total disability
benefits was appropriate. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order on
November 9, 2016.
review, we agree with the decision of the Office of Judges as
affirmed by the Board of Review. The evidence of record
supports the finding that Ms. Gunter was not temporarily and
totally disabled under the law. Pursuant to West Virginia
Code § 23-4-5 (2003), if the period of disability does
not last longer than three days from the day the employee
leaves work as the result of the injury, no award shall be
allowed. The original treatment note for the injury did not
prescribe missing any time at work. Another report indicated
that Ms. Gunter should miss one week of work. However, that
report contained a diagnosis of radiculopathy, which has not
been held compensable in this claim. Dr. Yee found
significant pain behaviors and no significant findings on
either a nerve conduction study or MRI. As the denial of
temporary total disability benefits is supported by the
evidentiary record, the Office of Judges and Board of Review
did not err in affirming the denial.
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
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...