Appeal No. 2051403) (Claim No. 2013003726)
Randy Sisson, by Edwin Pancake his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Toyota Motor Manufacturing WV, Inc., by James
Heslep its attorney, filed a timely response.
issues presented in the instant appeal are Mr. Sisson's
request to reopen his claim for consideration of temporary
total disability benefits and his request for mileage
reimbursement. On May 15, 2015, the claims administrator
denied Mr. Sisson's request to reopen his claim on a
temporary total disability basis. On June 22, 2015, the
claims administrator denied his request for mileage
reimbursement for dates of service for August 7, 2012,
through June 13, 2013. The Workers' Compensation Office
of Judges affirmed both of the claims administrator's
decisions on July 7, 2016. This appeal arises from the Board
of Review's Final Order dated November 28, 2016, in which
the Board 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
Sisson injured his lower back on July 28, 2012, in the course
of his employment with Toyota Motor Manufacturing WV, Inc.,
when a piece of equipment malfunctioned. On July 30, 2012,
he sought treatment in the emergency department of CAMC Teays
Valley Hospital where he was diagnosed with a lumbar sprain
and acute/chronic lower back pain. Additionally, a lumbar
spine MRI performed on August 3, 2012, revealed degenerative
disc disease. Mr. Sisson's claim for workers'
compensation benefits was subsequently held compensable for a
lumbar sprain/strain by Office of Judges' decision dated
June 12, 2014. The WC-1 which contains the compensable
diagnosis indicates that Mr. Sisson would miss work due to
the work-related lumbar sprain/strain less than four days. In
other words, the claim is a no-lost-time claim for purposes
of payment of temporary total disability benefits.
Sisson sought treatment with Tigran Garabekyan, M.D., on
December 20, 2012, amid complaints of right hip pain. Dr.
Garabekyan noted that Mr. Sisson has an extensive history of
back, hip, and lower extremity pain with associated numbness
and tingling. He further noted that Mr. Sisson is currently
undergoing physical therapy and is receiving treatment at a
pain clinic. Dr. Garabekyan then opined that the majority of
Mr. Sisson's current complaints are attributable to
degenerative disc disease and focal nerve compression, as
evidenced via the August 3, 2012, MRI.
March 24, 2015, Mr. Sisson completed a temporary total
disability benefits reopening application. The
physician's portion of the application was completed by
Sean DiCristofaro, M.D., Mr. Sisson's primary care
physician. Dr. DiCristofaro listed Mr. Sisson's diagnosis
as lumbago and indicated that Mr. Sisson was temporarily
totally disabled from July 28, 2012, through June 24, 2013.
The claims administrator denied Mr. Sisson's request to
reopen his claim on a temporary total disability basis on May
12, 2015, Mr. Sisson's attorney submitted vouchers for
mileage reimbursement for Mr. Sisson's travel to and from
Teays Valley Medical and Rehabilitation Center, which cover
appointments that occurred between August 7, 2012, and June
13, 2013. On June 22, 2015, the claims administrator
denied Mr. Sisson's request for mileage reimbursement.
Marsha Lee Bailey, M.D., performed an independent medical
evaluation on August 6, 2015. Dr. Bailey noted that Mr.
Sisson reported experiencing chronic lower back pain with
numbness and tingling in the lower extremities. Mr. Sisson
stated that his lower back pain worsened following the July
28, 2012, injury. She diagnosed Mr. Sisson with chronic lower
back pain without true radiculopathy. Dr. Bailey then opined
that it is reasonable to assume that Mr. Sisson sustained a
simple sprain/strain at the time of the July 28, 2012,
injury, which has long-since resolved. Additionally, she
opined that the worsening of symptoms which Mr. Sisson is
currently experiencing is most likely attributable to
worsening lumbar degenerative disc disease, degenerative
joint disease, and diabetic peripheral neuropathy.
Order affirming the May 15, 2015, and June 22, 2015, claims
administrator's decisions, the Office of Judges held that
Mr. Sisson has failed to demonstrate that he was temporarily
totally disabled as a result of the compensable injury, and
has also failed to demonstrate that his request for mileage
reimbursement was timely filed and related to authorized
treatment for the compensable injury. The Board of Review
affirmed the reasoning and conclusions of the Office of
Judges in its decision dated November 28, 2016. On appeal,
Mr. Sisson asserts that the evidence of record clearly
demonstrates that he was temporarily totally disabled as a
result of the compensable injury. He further asserts that he
is entitled to mileage reimbursement for expenses incurred
while travelling in order to receive treatment for the
Mr. Sisson's request to reopen his claim on a temporary
total disability basis, the Office of Judges found that Mr.
Sisson has a significant history of various pre-existing
conditions in the lumbar spine upon which the compensable
injury was superimposed. The Office of Judges further noted
that both Dr. Garabekyan and Dr. Bailey attributed Mr.
Sisson's symptoms to these pre-existing conditions.
Moreover, the Office of Judges found that Mr. Sisson failed
to submit any evidence demonstrating that he was temporarily
totally disabled as a result of the compensable injury.
Specifically, the Office of Judges found that a large portion
of the evidence of record indicates that during the time
frame that Mr. Sisson was unable to return to work, he was
receiving treatment for pre-existing conditions.
the request for mileage reimbursement, the Office of Judges
looked to West Virginia Code § 23-4-3(a)(2) (2005),
which provides that payments or disbursements will not be
made unless duly verified statements on forms prescribed by
the claims administrator have been filed within six months
after the rendering of treatment or within ninety days of a
compensability ruling if the claim was initially rejected.
Additionally, the Office of Judges looked to West Virginia
Code of State Rules § 85-1-15 (2009), which discusses a
claimant's right to receive mileage reimbursement in
certain circumstances. The Office of Judges found that the
travel vouchers were submitted on June 12, 2015, and because
the claim was held compensable on June 12, 2014, the vouchers
were not submitted within the statutorily prescribed time
frame. Moreover, the Office of Judges found that Mr. Sisson
failed to submit evidence demonstrating that the mileage
reimbursement requests arose from travel related to treatment
rendered in the instant claim. We agree with the reasoning
and conclusions of the Office of Judges, as affirmed by the
Board of Review.
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 Jean Davis Justice Margaret L. Workman Justice Menis ...