Appeal No. 2052592) (Claim No. 2015008099)
Leonard Dotson, by Anne L. Wandling, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. JR Acquisition, LLC, by H. Toney Stroud, its
attorney, filed a timely response.
issue on appeal is temporary total disability benefits for
the covered condition of restrictive airway dysfunction
syndrome. The claims administrator issued an Order on October
5, 2016, closing the claim for temporary total disability
benefits because it had not received medical evidence showing
that Mr. Dotson continued to be totally disabled. On February
2, 2018, the Workers' Compensation Office of Judges
reversed the claims administrator's decision and entered
a Final Decision to pay temporary total disability benefits
from September 11, 2014, through December 1, 2014, and then
from December 3, 2014, through April 10, 2015. This appeal
arises from the Board of Review's Order dated June 29,
2018, in which the Board affirmed the decision of the Office
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
September 9, 2014, Mr. Dotson, a miner, was overcome and he
passed out due to exposure to an unknown chemical or other
substance. He eventually was diagnosed with restrictive
airway dysfunction syndrome, which is a lung disease caused
by exposure to an irritating vapor, fume or smoke. The
disease causes an individual to develop asthma-like symptoms.
After lengthy litigation, the claim was held compensable
following a July 6, 2017, Order of this Court.
Dotson began treating with Lamia H. Ibrahim, M.D., a
pulmonologist at Cleveland Clinic, following his injury. On
November 18, 2014, Mr. Dotson presented for an evaluation
with Dr. Ibrahim and expressed a desire to return to work. He
had been off work since the incident. Dr. Ibrahim provided
Mr. Dotson with a letter to return to work in December of
2014. However, Mr. Dotson was only able to work one day,
which was December 2, 2014. Mr. Dotson could not work on
December 3, 2014, because he felt smothered and experienced
tightness in his chest. Once again, Mr. Dotson was
temporarily and totally disabled from his employment.
February 10, 2015, Dr. Ibrahim reported in an office note
that Mr. Dotson's breathing was better since being off
work and having the second attack. Dr. Ibrahim noted that Mr.
Dotson still needed albuterol twice daily but usually
preemptively before activity. Mr. Dotson was found to still
be experiencing wheezing and exacerbations when his condition
was triggered by strong scents and activity. Dr. Ibrahim
prescribed additional medication and asked Mr. Dotson to
follow-up with the pulmonary clinic in two months. In a
letter dated February 18, 2015, Dr. Ibrahim indicated that
Mr. Dotson had been disabled and unable to work at his place
of employment from October 30, 2014, to the
Attending Physician Benefits Form was completed by Dr.
Ibrahim on June 13, 2016. Dr. Ibrahim reported that Mr.
Dotson's estimated period of disability was from November
18, 2014, to "lifetime." It was also indicated that
he was at maximum medical improvement and ready for a
permanent partial disability rating. In response to Dr.
Ibrahim's request, the claims administrator issued a
letter dated June 30, 2016, stating that it was determined
that the Attending Physician Benefit's Form does not
support payment of temporary total disability benefits
because Dr. Ibrahim indicated that Mr. Dotson's condition
is permanent in nature and not temporary.
letter dated August 16, 2016, Dr. Ibrahim stated that Mr.
Dotson had been under her care since September 30, 2014. She
stated that he was currently being treated with inhalers but
he continued to experience exacerbations of his condition.
Dr. Ibrahim stated, "due to the severity of Mr.
Dotson's disease he is unable to work indefinitely."
Dr. Ibrahim again completed an Attending Physician
Benefit's Form on August 18, 2016, indicating that Mr.
Dotson was at maximum medical improvement and ready for a
permanent partial disability rating. Mr. Dotson's
estimated period of temporary disability was listed as being
from September 30, 2014, to August 16, 2016. Dr. Ibrahim also
stated that Mr. Dotson was not able to return to work. Mr.
Dotson, through his counsel, requested temporary total
disability benefits for the dates specified by Dr. Ibrahim on
September 22, 2016.
Ibrahim was deposed on October 24, 2017, and she testified
about her medical treatment of Mr. Dotson. It was Dr.
Ibrahim's opinion that when she completed the Attending
Physician's Form that Mr. Dotson was temporarily and
totally disabled from September 30, 2014, to August 16, 2016.
Dr. Ibrahim stated that Mr. Dotson's response to medical
treatment had plateaued. She stated that there was some
initial improvement with medications, but over time Mr.
Dotson started to experience a decline in his improvement.
Dr. Ibrahim's recommendation was for Mr. Dotson to avoid
working in mining coal because dust or irritants can cause an
exacerbation of his condition. She further testified that Mr.
Dotson needs continued medical care and a portable oxygen
concentrator for supplemental oxygen. Although Dr. Ibrahim
was not familiar with "maximum medical improvement"
for use within workers' compensation, she indicated that
she hoped that his condition would improve even further
because he suffers from a disease that is reversible. Dr.
Ibrahim stated, "[t]here will be times when his symptoms
are worse and then there will be times when his symptoms are
Office of Judges found that the medical evidence establishes
by a preponderance of the evidence that Mr. Dotson is
entitled to payment of temporary total disability benefits
from September 11, 2014, through December 1, 2014. Because
Mr. Dotson attempted a failed return to work on December 2,
2014, he would be entitled to additional benefits from
December 3, 2014, through April 10, 2015. The Office of
Judges took judicial notice of an April 22, 2016, ruling
holding the claim compensable for restrictive airway
dysfunction syndrome and attributing his pulmonary symptoms
after September 9, 2016, to that compensable condition.
Although Mr. Dotson argued before the Office of Judges that
he was entitled to temporary total disability benefits
through August 16, 2016, the Office of Judges found that
there was insufficient evidence to support Mr. Dotson's
argument because no medical treatment records or specific
medical findings were submitted for this period of time.
Because there are no contemporaneous opinions in the medical
record expressing Mr. Dotson's continued inability to
work, the Office of Judges determined that he is not entitled
to the payment of temporary total disability benefits from
April 11, 2015, through August 16, 2016.
the Office of Judges issued a Final Decision dated February
2, 2018, reversing the claims administrator's closing of
the claim for temporary total disability benefits and found
that Mr. Dotson was entitled to benefits from September 11,
2014, through December 1, 2014, and then from December 3,
2014, through April 10, 2015. The Board of Review adopted the
findings of facts and conclusions of law of the Office of
Judges and affirmed the Order dated June 29, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges, as affirmed by the Board of Review.
Although Mr. Dotson's period of total temporary
disability can be established through April 10, 2015, there
is no medical evidence to establish that he was temporarily
and totally disabled through August 16, 2016. The Office of
Judges properly found that there are no medical treatment
records on file in this case between Dr. Ibrahim's
examination of February 10, 2015, and August 2016. Mr. Dotson
has not shown by a preponderance of the evidence that he is
entitled to the payment of temporary total disability
benefits from April 11, 2015, through August 16, 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 ...