Appeal Nos. 2052367 & 2052388) (Claim No. 2017020639)
Jason Fittro, by J. Thomas Greene Jr., his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Murray American Energy, Inc., by Aimee M.
Stern and Denise D. Pentino, its attorneys, filed a timely
issue on appeal is the closure of the claim for temporary
total disability benefits. The claims administrator closed
the claim for temporary total disability benefits on April
28, 2017. The Office of Judges affirmed the decision in two
Orders dated November 28, 2017, and December 15, 2017. The
Orders were affirmed by the Board of Review on June 15, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Fittro, a coal miner, was injured in the course of his
employment on February 7, 2017. A treatment note by Amanda
Del Sordo, PA-C, the following day, indicates Mr. Fittro was
seen for left knee pain, swelling, and instability. Ms. Sordo
diagnosed left knee sprain. Mr. Fittro followed up with Chad
Micucci, M.D., on February 21, 2017. Dr. Micucci diagnosed
left knee medial collateral ligament sprain. He prescribed a
brace and physical therapy. Mr. Fittro was taken off of work
until May 14, 2017. The Employee's and Physician's
Report of Injury was completed on February 23, 2017. It
indicates Mr. Fittro injured his left knee when he exited a
shuttle car to check a cable, stepped in a rut, and twisted
his knee. The diagnosis was listed as left knee sprain.
Fittro was surveilled on March 3, 2017, and March 4, 2017. At
that time, he was at an all-terrain vehicle race with his
sons. The footage shows Mr. Fittro walking on uneven ground,
running, pushing all-terrain vehicles, and lifting an
March 14, 2017, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation in which he found that Mr.
Fittro had reached maximum medical improvement for his
compensable knee sprain. He found no range of motion
abnormalities in the left knee. Dr. Mukkamala opined that Mr.
Fittro required no further treatment or diagnostic studies
and assessed 0% impairment. Mr. Fittro returned to Dr.
Micucci five days later and indicated that he was still
having trouble straightening his knee. The diagnoses were
left knee pain and medial collateral ligament sprain. Dr.
Micucci recommended an MRI.
March 20, 2017, the claim was held compensable for left knee
sprain. Temporary total disability benefits were granted from
February 21, 2017, through March 16, 2017. In a separate
decision that day, the claims administrator also suspended
further temporary total disability benefits based on Dr.
Mukkamala's finding of maximum medical improvement.
29, 2017, treatment note by Dr. Micucci indicates he
diagnosed a medial collateral ligament sprain but could not
rule out a meniscus tear. He opined that Mr. Fittro still
needed physical therapy. If the pain persisted, he
recommended an MRI. On April 3, 2017, Mr. Fittro presented
for follow up. Dr. Micucci noted that he was unable to get an
MRI because of metal in his neck. Mr. Fittro had started
physical therapy and had seen 50% improvement in four
sessions. Mr. Fittro reported increased range of motion and
more stability. On April 28, 2017, the claims administrator
closed the claim for temporary total disability benefits.
Fittro returned to Dr. Micucci on May 1, 2017. Dr. Micucci
stated that physical therapy had improved the knee 75-80%.
Mr. Fittro still had knee pain with swelling. Dr. Micucci
opined that since there was swelling in the knee, there was
likely some pathology. Since Mr. Fittro was unable to undergo
an MRI, Dr. Micucci recommended diagnostic arthroscopy. The
claims administrator denied the request for arthroscopy on
May 23, 2017. Dr. Micucci performed the arthroscopy on June
15, 2017. His post-operative note indicates diagnoses of
medial meniscus tear, lateral meniscus tear, partial anterior
cruciate ligament tear, and early arthritis.
August 8, 2017, addendum, Dr. Mukkamala opined that the left
knee arthroscopy performed by Dr. Micucci was not necessary
treatment for the compensable left knee sprain. Dr. Mukkamala
found that the medical evidence indicates Mr. Fittro
sustained a left knee sprain as a result of the compensable
injury. When Dr. Micucci performed the arthroscopy, he found
tears of the medial and lateral meniscus, a partial tear of
the anterior cruciate ligament, and early arthritis. Dr.
Mukkamala opined that the meniscus tears and anterior
cruciate ligament tear were chronic, degenerative, and
unlikely to be causally related to the compensable injury. He
stated that if the conditions were injury related, the
findings by Ms. Del Sordo would have been more obvious. Dr.
Mukkamala further opined that the activities Mr. Fittro was
seen performing on the surveillance footage were not
consistent with someone who had recently sustained a medial
meniscus tear, lateral meniscus tear, and partial anterior
cruciate ligament tear. Dr. Mukkamala opined that the
anterior cruciate ligament tear and meniscus tears were
likely the result of degeneration.
Fittro testified in a deposition on August 10, 2017, that
prior to the compensable injury, he was working full duty
with no restrictions. He stated that he has been unable to
return to work since the compensable injury occurred. He
underwent unapproved surgery and is expected to return to
work on August 22, 2017. Mr. Fittro testified that Dr.
Micucci has not released him to return to work or said that
he has reached maximum medical improvement. Mr. Fittro
admitted to performing pit crew duties for his sons at an
all-terrain vehicle race on the weekend of March 3, 2017. He
stated that he did not sustain any additional injuries as a
result of that weekend. He admitted that he stood an
all-terrain vehicle up on its end, walked on uneven terrain,
ran, and pushed all-terrain vehicles that weekend. Mr. Fittro
asserted that he did what he had to do and that his knee
still hurt that weekend.
Office of Judges affirmed the claims administrator's
closure of the claim for temporary total disability benefits
in decisions dated November 28, 2017, and December 15, 2017.
It found that Dr. Mukkamala's report offered the most
persuasive evidence of maximum medical improvement for the
compensable injury. The Office of Judges noted that the
claims administrator held the claim compensable for left knee
sprain. It found that Dr. Micucci stated that most medial
collateral ligament injuries improve within four to eight
weeks. Since Mr. Fittro had pain beyond that time frame, Dr.
Micucci stated that he could not exclude the possibility of a
meniscus tear. When Dr. Micucci performed surgery on the left
knee, he did indeed find a medial meniscus tear, as well as a
lateral meniscal tear and a partial tear of the anterior
cruciate ligament. He also noted early arthritic changes. The
Office of Judges found that there was no diagnosis update to
include these conditions in the claim. Therefore, those
conditions are not part of the claim and cannot be considered
when assessing Mr. Fittro's need for temporary total
disability benefits. Dr. Mukkamala's finding that Mr.
Fittro had reached maximum medical improvement for the
compensable left knee sprain was persuasive. The Office of
Judges therefore concluded that the claim was properly closed
for temporary total disability benefits. The Board of Review
adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on June 15, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Pursuant
to West Virginia Code § 23-4-7a (2005), temporary total
disability benefits will cease when the claimant has reached
maximum medical improvement, has been released to return to
work, or has returned to work, whichever occurs first. Dr.
Mukkamala persuasively found that Mr. Fittro had reached
maximum medical improvement for his compensable left knee
sprain. The conditions that still ...