Appeal No. 2051938 Claim No. 2015016158
Leonard Cantley, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Beckley Steel, Inc., by Daniel G. Murdock,
its attorney, filed a timely response.
issue on appeal is the proper period of temporary total
disability benefits to be awarded to Mr. Cantley. On June 10,
2016, the claims administrator denied a request for temporary
total disability benefits from January 20, 2015, through May
9, 2016. The Office of Judges reversed the decision in its
March 13, 2017, Order, and granted temporary total disability
benefits from January 20, 2015, through May 9,
2016. The Order was modified by the Board of
Review on September 1, 2017, to grant benefits from May 9,
2016, through June 16, 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
Cantley, a truck loader, was injured in the course of his
employment on November 5, 2014, while lifting a piece of
iron. The employer's report of injury indicates Mr.
Cantley was injured on November 5, 2014, and reported the
injury to his supervisor, Robert Palmer. The injury was
listed as back sprain/strain. The employee's and
physician's report of injury indicates the claimant was
lifting a piece of iron when he felt something pop in his
back. He was diagnosed with a lumbar sprain and released to
return to modified duty on November 10, 2014, with
restrictions in bending/stooping, lifting, kneeling, walking,
to the compensable injury, Mr. Cantley had a history of lower
back injuries. A lumbar x-ray taken on March 3, 2010, showed
spondylosis at multiple levels including T12-L6 with loss of
disc space height at every level. There were multiple
interbody disc herniations and it was noted that the claimant
may have Scheuermann's disease. There was also facet
arthropathy at L4-5 and L5-S1. A November 13, 2010, lumbar
x-ray was compared to the prior x-ray. The impression was
osteoarthritic changes of the lumbar articular facet joint,
diffuse narrowing of lumbar intervertebral disc spaces, and
no evidence of acute fractures. Lumbar x-rays taken on May
19, 2013, showed chronic degenerative disc disease.
Cantley testified in a deposition on June 10, 2015, that on
the date of injury, he picked up a piece of iron and felt a
pop in his back. He finished his shift out of fear of losing
his job. He attempted to work the following day but quickly
realized he was unable to perform his duties. He filed an
accident report and sought treatment at MedExpress. Mr.
Cantley stated that he had x-rays completed but authorization
for an MRI was denied. He stated that he then went to Raleigh
General Hospital where a CT revealed bulging discs. Mr.
Cantley admitted that he had previously injured his back at
work and was off for four days, but asserted that the current
injury felt different in that he can hardly pick his legs up
now. He stated that prior to the November 5, 2014, injury, he
was not having any back problems and was on no medication. He
was not under a physician's care at the time of the
January 13, 2016, ChuanFang Jin, M.D., completed a file
review report in which she opined that there was no
persuasive medical evidence to support the assumption that
there was a work-related injury to the lumbar spine. She
asserted that Mr. Cantley's clinical symptoms are part of
the natural history of degenerative lumbar disc disease, as
shown on a March 3, 2010, x-ray. Dr. Jin opined that Mr.
Cantley's treatment history since 2001 shows chronic
degenerative disc disease gradually worsening over time. She
found no diagnosis for a workers' compensation claim
since the symptoms are difficult to differentiate from a
mechanical strain type of injury. She opined that if an
injury did occur, it would have been a sprain/strain type of
injury, which heals in a few weeks or months. Dr. Jin stated
that Mr. Cantley's current symptoms are unlikely from a
sprain and are likely due to chronic degenerative disc
disease, which commonly causes chronic symptoms. She
recommended no additional medical treatment.
treatment note from MedExpress dated May 9, 2016, indicates
Mr. Cantley was seen for follow-up for his compensable
injury. The assessment was lumbar sprain. Mr. Cantley was
taken off of work until after an MRI and appointment with
Rajesh Patel, M.D. On June 16, 2016, Paul Bachwitt, M.D.,
performed an independent medical evaluation and found that
Mr. Cantley had reached maximum medical improvement. He found
no clinical findings of a herniated disc on his examination.
Using the American Medical Association's Guides to
the Evaluation of Permanent Impairment (4th ed. 1993),
Dr. Bachwitt found 5% lumbar spine impairment due to the
compensable injury. He stated that it would not be
unreasonable to perform a lumbar MRI, but he doubted it would
show anything. Dr. Bachwitt further opined that a
neurosurgical referral was unnecessary and that Mr.
Cantley's current complaints were related to his multiple
prior back injuries and preexisting degenerative changes.
lumbar MRI performed on August 30, 2016, showed disc
herniations and degeneration at L5-S1, L2-3, L3-4, and L4-5.
It also showed osteoarthritic vertebral body lipping and
facet hyperostosis. Mr. Cantley stated in a September 14,
2016, affidavit that he sought treatment at MedExpress until
he was forced to discontinue treatment because the claim was
rejected. Once it was held compensable, he resumed treatment.
10, 2016, the claims administrator denied a request for
temporary total disability benefits from January 20, 2015,
through May 9, 2016. On March 13, 2017, the Office of Judges
reversed the decision and granted temporary total disability
benefits from January 20, 2015, through June 16, 2016. It
found that the evidence of record fails to show that Mr.
Cantley was ever released to return to work after January 9,
2015. Though there are no treatment notes between that date
and May 9, 2015, Mr. Cantley explained that he was forced to
discontinue treatment because the claim was initially
rejected. He resumed treatment days after the claim was held
compensable. On May 9, 2016, a Workers' Compensation Duty
Form completed by MedExpress indicated Mr. Cantley was unable
to work until an MRI and an appointment with Dr. Patel were
completed. He was then found to be at maximum medical
improvement by Dr. Bachwitt on June 16, 2016. The Office of
Judges therefore concluded that Mr. Cantley was entitled to
temporary total disability benefits from January 20, 2015,
through June 16, 2016. The Office of Judges stated that its
decision was based on the fact that there is no credible,
reliable evidence that Mr. Cantley reached maximum medical
improvement, was released to return to work, or returned to
work before June 16, 2016.
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and modified the Office of
Judges Order to grant temporary total disability benefits
from May 9, 2016, through June 16, 2016. The Board of Review
found that Mr. Cantley requested temporary total disability
benefits from January 20, 2015, through May 9, 2016, and the
Office of Judges awarded benefits for that time period.
However, the Board of Review found that West Virginia Code
§ 23-4-1c(c) (2009) provides that temporary total
disability benefits are to be awarded upon receipt of medical
evidence justifying the payment of such benefits. In this
case, the Board of Review found no medical evidence to
support the Office of Judges' decision as there are no
treatment records between January 9, 2015, and May 9, 2016.
On May 9, 2016, Mr. Cantley was treated at MedExpress and
taken off of work until he could receive an MRI and have an
appointment with Dr. Patel. On June 16, 2016, he was found to
be at maximum medical improvement. The Board of Review
therefore concluded that Mr. Cantley was temporarily and
totally disabled from May 9, 2016, through June 16, 2016.
review, we agree with the reasoning and conclusions of the
Board of Review. It is the responsibility of the claimant to
show by a preponderance of the evidence that he is entitled
to temporary total disability benefits. In this case, Mr.
Cantley failed to provide sufficient evidence to show that he
was temporarily and totally disabled for the period from
January 20, 2015, through May 9, 2016.
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 ...