JAY E. CLEGG, Claimant Below, Petitioner
OHIO POWER COMPANY, Employer Below, Respondent
Appeal No. 2052842) (Claim No. 2009082115)
Jay E. Clegg, by Counsel J. Robert Weaver, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). Ohio Power Company,
by Counsel Henry C. Bowen, filed a timely response.
issue in this case is whether or not Mr. Clegg is entitled to
receive hand therapy as requested by his treating physician
due to pain and other upper extremity limitations related to
his compensable claim. The claims administrator denied Mr.
Clegg's request for occupational therapy in an Order
dated January 16, 2018. On April 17, 2018, the Workers'
Compensation Office of Judges ("Office of Judges")
reversed the claims administrator's decision and approved
hand therapy for Mr. Clegg. This appeal arises from the Board
of Review's Final Order dated September 24, 2018, in
which the Board reversed and vacated the April 17, 2018,
Order of the Office of Judges. The Board of Review reinstated
the claims administrator's decision. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Clegg filed a claim for bilateral carpal tunnel syndrome and
bilateral ulnar nerve lesion as the result of working many
years of repetitive motion work for Ohio Power Company. The
report of occupational injury was signed by L. W. deGarmeaux,
D.C., his treating physician, who indicated that Mr. Clegg
had incurred an occupational disease. During litigation of
the claim, Mr. Clegg received multiple permanent partial
disability awards. Initially, Mr. Clegg was awarded a 5%
permanent partial disability award based upon a decision by
the Office of Judges on July 29, 2011. The Office of Judges
awarded Mr. Clegg a 5% award based upon a December 3, 2010,
report of ChuanFang Jin, M.D. The 5% award was protested and
was eventually affirmed by this Court.
15, 2016, Mr. Clegg requested reopening his claim for
additional permanent partial disability. By Order of July 19,
2017, his request was acknowledged and he was referred to Dr.
Jin for a second evaluation. Dr. Jin examined Mr. Clegg on
August 30, 2016, for bilateral ulnar neuropathy and to assess
Mr. Clegg's post-surgery status. Dr. Jin found that Mr.
Clegg had reached his maximum degree of medical improvement
and using the American Medical Association's Guides
to the Evaluation of Permanent Impairment
(4th ed. 1993), found that Mr. Clegg had 1% whole
person impairment in each hand, for 2% whole person
impairment related to ulnar neuropathy that was surgically
decompressed. Based upon the findings of Dr. Jin, the claims
administrator granted Mr. Clegg a 2% permanent partial
disability award on January 30, 2017. Mr. Clegg protested the
claims administrator's award.
support of his protest, Mr. Clegg submitted the May 4, 2017,
report of Bruce Guberman, M.D. Dr. Guberman opined that Mr.
Clegg had reached his maximum degree of medical improvement
and recommended a rating of 26% whole person impairment.
November 22, 2017, Dr. deGarmeaux requested authorization for
a consultation and upper extremity physical therapy. On
December 7, 2017, a request was submitted by Dr. deGarmeaux
to the claims administrator requesting approval for a
referral to the Wheeling Hospital Hand Therapy Center for
occupational therapy regarding his compensable injuries. This
request was denied by the claims administrator in an Order
dated January 16, 2018. Mr. Clegg protested the claims
administrator's denial of the request for a consultation
Clegg was treated at the Wheeling Hospital Hand Therapy
Center on November 29, 2017. Office notes indicate that he
presented for treatment complaining of numbness in his small
and ring fingers bilaterally, but worse on the left side. He
also reported a pulling sensation in all of his fingers when
making a fist. Mr. Clegg reported a nine to ten year history
of numbness, tingling and pain bilaterally in his upper
extremities. Lydia Estep, an occupational therapist,
completed a comprehensive examination of Mr. Clegg's
upper extremities including his range of motion limitations
and muscle power impairments. Mr. Clegg also attended hand
therapy with Ms. Estep on December 6, 2017, where he reported
that he was experiencing pain in his thumbs and wrists after
using a chain saw over the previous weekend. In an
Occupational Therapy Note dated December 13, 2017, Ms. Estep
noted that Mr. Clegg reported upper extremity pain and left
shoulder pain at night and numbness after using a computer.
He reported on December 20, 2017, that his pain was a little
better following treatment. Mr. Clegg was still experiencing
shoulder pain. The claims administrator received a request
from Dr. deGarmeaux for a referral for hand occupational
therapy at the Wheeling Hospital Hand Therapy Center on
December 7, 2017.
Clegg was examined by Prasadarao Mukkamala, M.D., for an
independent medical evaluation on December 13, 2017. Dr.
Mukkamala determined that Mr. Clegg had reached his maximum
degree of medical improvement, and he was not in need of any
further treatment. Dr. Mukkamala determined that impairment
was about the same for the right and left upper extremities.
He found 3% whole person impairment for carpal tunnel
syndrome/median nerve neuropathy and 1% whole person
impairment for ulnar nerve dysfunction. Combining the
impairment, Dr. Mukkamala found 4% impairment for each upper
extremity for a combined total of 8% whole person impairment.
On February 16, 2018, the Office of Judges reversed the
January 30, 2017, Order of the claims administrator and
granted Mr. Clegg an additional 3% whole person impairment
for his ulnar neuropathy.
Order dated January 16, 2018, the claims administrator denied
the December 7, 2017, request from Dr. deGarmeaux for Mr.
Clegg to receive hand therapy at the Wheeling Hospital
Occupational Hand Therapy Center. Mr. Clegg protested the
claims administrator's denial of his request for therapy.
Office of Judges reversed the claims administrator's
decision and approved hand therapy on April 17, 2018. In its
Order, the Office of Judges concluded that it was more likely
than not that Mr. Clegg's current hand issues were
related to the 2008 compensable injury and noted,
"[e]ven if the petitioner has non-compensable issues
like aging, treatment does not need to be solely for the
compensable condition when the same body part is
involved." Ohio Power Company appealed. By Order dated
September 24, 2018, the Board of Review reversed the decision
of the Office of Judges and reinstated the original denial of
appeal, Mr. Clegg argues that the claims administrator is
required to provide medically necessary and reasonably
required medical treatment pursuant to West Virginia Code
§ 23-4-3 (2019) and West Virginia Code of State Rules
§ 85-20 (2006). He further argues that Dr. deGarmeaux
has been his treating physician since 2009 and is the
physician most familiar with his problems and limitations.
Mr. Clegg argues that the Board of Review's decision is
clearly wrong and the opinion of Dr. deGarmeaux should be
given greater weight compared to the one-time evaluation
performed by Dr. Mukkamala.
review, this Court agrees with the Board of Review. In its
September 24, 2018, Order, the Board of Review concluded that
an appointment/referral to Wheeling Hospital Hand Therapy
Center was not medically necessary or reasonably required in
the course of treatment for the compensable injury. Dr.
deGarmeaux requested authorization for hand therapy on
December 7, 2017. However, Dr. Mukkamala determined on
December 13, 2017, that Mr. Clegg had reached his maximum
degree of medical improvement and was not in need of
additional medical treatment. The Board of Review correctly
determined that the evidence ...