Appeal No. 2052915) (Claim No. 2018002461)
John Stout II, by Counsel William Gallagher, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). Advantage Solutions,
by Counsel Noah Barnes, filed a timely response.
issue on appeal is whether or not Mr. Stout is entitled to
temporary total disability benefits in this claim. On March
1, 2018, the claims administrator denied Mr. Stout's
request for temporary total disability benefits from February
15, 2018, through April 23, 2018. In a separate Order dated
March 1, 2018, the claims administrator closed the claim for
temporary total disability benefits. In its Order, the
Workers' Compensation Office of Judges ("Office of
Judges") reversed the claims administrator's Orders.
The Office of Judges awarded temporary total disability
benefits from September 29, 2017, through October 27, 2017,
and thereafter as substantiated by proper medical evidence.
The Office of Judges also reversed the claims
administrator's decision to close the claim for the
payment of temporary total disability benefits. This appeal
arises from the Board of Review's Final Order dated
August 28, 2018, in which the Board reversed and vacated the
May 9, 2018, Order of the Office of Judges, and reinstated
the claims administrator's two orders dated March 1,
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
Stout previously worked for Advantage Solutions as a retail
sales representative. He was injured at work on July 19,
2017, when he was lifting a large bag of cat litter while
working at Wal-Mart. A plastic strap broke on the box and the
box fell on Mr. Stout's right foot causing pain,
swelling, bruising, and causing him to walk with a limp. He
filed an Employees' and Physicians' Report of Injury
on August 2, 2017. The physician's section of the form
was completed by Timothy Wilson, D.O., who diagnosed Mr.
Stout with a nondisplaced fracture of the distal phalanx of
the right great toe. Dr. Wilson checked the box indicating
that the injury was an occupational injury and he referred
Mr. Stout to Michael Kovalick, D.O.
Stout treated with Dr. Kovalick for his injury. Dr. Kovalick
thereafter completed a Physician's Report of Work Ability
form dated August 9, 2017, indicating that he could return to
work with restrictions from August 10, 2017, through August
31, 2017. Dr. Kovalick limited Mr. Stout's activity to be
mostly seated duty with occasional walking or standing. Mr.
Stout was also ordered to rest his foot as much as possible.
Advantage Solutions issued a letter dated August 11, 2017,
indicating that Mr. Stout was approved for a leave of absence
from August 9, 2017, through August 31, 2017. The claims
administrator held the claim compensable for nondisplaced
fracture of the distal phalanx of the right great toe,
sequela by Order dated August 15, 2017.
Stout was seen at East Ohio Regional Medical Center on
September 7, 2017, by Dr. Kovalick for a follow-up
examination. Mr. Stout reported that he was still having pain
and felt unsteady when climbing up or going down stairs. Dr.
Kovalick stated that he was able to palpate the great toe
without much difficulty and that Mr. Stout was able to flex
and extend his toe. After reviewing the initial x-rays, Dr.
Kovalick noted that he was having a difficult time seeing any
fracture of the right great toe. Dr. Kovalick believed that
it was not definite as to whether Mr. Stout ever had a
nondisplaced fracture and, if so, it would have healed within
the six weeks since the injury. Dr. Kovalick released Mr.
Stout to return to work as of September 11, 2017, with the
restrictions that he should not run, jump, squat, or climb.
Stout returned to work on September 14, 2017. The claims
administrator suspended temporary total disability benefits
on September 14, 2017, and noted that he had been released to
return to work. Mr. Stout was able to work for several weeks.
However, he was terminated on September 29, 2017, for
violation of the employer's attendance policy.
before Mr. Stout's termination, he returned to Dr.
Kovalick complaining of pain between his first and second
metatarsal on his right foot, as well as some pain along the
plantar surface of his foot. He also complained that his
ankle felt unsteady. Dr. Kovalick noted no bruising or
discoloration of Mr. Stout's foot. Dr. Kovalick also
filled out a Physician's Report of Work Ability form and
marked the box that Mr. Stout could return to work with
restrictions from September 28, 2017, through October 27,
2017. Dr. Kovalick referred Mr. Stout to Joseph H. Goodwin,
October 2, 2017, the claims administrator issued a
protestable Order informing Mr. Stout that it had received
medical evidence to continue temporary total disability
benefits. Temporary total disability benefits were continued
after being suspended on September 14, 2017. On November 1,
2017, the claims administrator approved the request for a
referral to Dr. Goodwin. Dr. Goodwin examined Mr. Stout on
November 15, 2017, and he reported pain on palpation of the
right hallux as well as moderate soft tissue swelling. The
claims administrator authorized Dr. Goodwin as the treating
physician of record by letter dated January 10, 2018.
Goodwin completed a Diagnosis Update form on January 11,
2018, wherein he requested that the diagnoses of nondisplaced
fracture distal phalanx right hallux, pain of the right toes,
crush injury of the right foot, and neuralgia/neuritis be
added to the claim. Dr. Goodwin requested authority for
electromyography testing and arterial studies to see if the
crush injury caused more than a fracture. On January 16,
2018, the claims administrator authorized Dr. Goodwin's
request for electromyography testing and an arterial study.
An electromyography procedure of both lower extremities was
conducted at Ohio Valley Medical Center on February 1, 2018,
which was interpreted as showing no evidence for
radiculopathy or neuropathy.
claims administrator issued two separate Orders dated March
1, 2018, with respect to the issue of temporary total
disability. The first Order notified Mr. Stout that his
request for temporary total disability benefits for the
period of February 15, 2018, to April 23, 2018, was denied.
The claims administrator based its decision upon the
information that Mr. Stout had been released to return to
work on September 11, 2017. The Order also noted that Mr.
Stout's employment had been terminated on September 29,
2017. In the second Order, the claims administrator closed
the claim for temporary total disability benefits because the
claims administrator had not received medical evidence
showing that Mr. Stout continued to be totally disabled.
Again, the claims administrator based its decision upon Mr.
Stout being released to return to work on September 11, 2017.
Mr. Stout protested both decisions of the claims
Order dated May 9, 2018, the Office of Judges found that Mr.
Stout showed by a preponderance of the evidence that the
claims administrator erred in closing the claim for the
payment of temporary total disability benefits and denying
benefits pursuant to its separate Orders of March 1, 2018.
The Office of Judges determined that Mr. Stout is entitled to
temporary total disability benefits from September 29, 2017,
through October 27, 2017, and thereafter as established by
proper medical evidence. The Office of Judges also addressed
the second Order dated March 1, 2018, and reversed the claims
administrator's decision by finding that Mr. Stout did
not violate the employer's attendance policy. The Office
of Judges stated that the claims administrator erred in its
reliance on Mr. Stout's termination based upon a
violation of company policy to deny his request for temporary
total disability benefits. The employer protested the
Order dated August 28, 2018, the Board of Review found that
the Office of Judges' analysis and conclusions were
affected by error of law and clearly wrong in view of the
reliable, probative and substantial evidence of the whole
record. The Board found that Dr. Kovalick released Mr. Stout
to return to work on September 11, 2017, with restrictions.
Mr. Stout returned to work on September 14, 2017. The Board
of Review reasoned that Mr. Stout was working until his
employment was terminated on September 29, 2017. The Board of
Review further found that the claims administrator's
closure of the claim was proper because Mr. Stout was
released to return to work and he returned to work before
being terminated by his employer for violating the