Appeal No. 2052970) (Claim No. 2017021772).
Larry McClung, by Counsel Edwin H. Pancake, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). Constellium Rolled
Products, by Counsel Alyssa A. Sloan, filed a timely
issue on appeal is the closing of the claim for temporary
total disability benefits. The claims administrator closed
the claim for temporary total disability benefits on June 28,
2017. The Workers' Compensation Office of Judges
("Office of Judges"), affirmed the claims
administrator's decision on May 11, 2018. This appeal
arises from the Board of Review's Final Order dated
October 25, 2018, in which the Board of Review affirmed the
Order of the Office of Judges. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
McClung completed an application for benefits dated March 11,
2017, reporting that he injured his low back when he took a
step while carrying a spacer while at work. The
physician's section of the application was completed by
the staff at Jackson General Hospital when he was diagnosed
with a lumbar strain. The claims administrator held the claim
compensable for lumbar strain on April 12, 2017. An MRI dated
March 23, 2017, revealed a diffuse annular disc bulge with
moderate facet osteoarthritis at L3-L4, L4-L5 and L5-S1. Mild
bilateral neural narrowing was seen at the same levels. Mr.
McClung also had mild to moderate degenerative changes at the
sacroiliac joint. He continued to seek treatment and physical
therapy at Boone Memorial Hospital, where he was discharged
from physical therapy on April 25, 2017, for a lack of
improvement. He was referred for a neurological consultation.
April 27, 2017, Mr. McClung treated with Richard Knapp, M.D.,
for his continued low back pain. Mr. McClung reported that
his symptoms had increased since the time of his injury and
that he was having difficulty sitting and standing for long
periods of time due to pain. Dr. Knapp also noted that he
completed four weeks of physical therapy without any
improvement. Mr. McClung was diagnosed with lumbar strain,
and he was prescribed the medication Norco. Dr. Knapp thought
that he would benefit from a neurological consultation and
assessment. On April 27, 2017, Dr. Knapp formally requested
authorization for Mr. McClung to be referred to a
neurosurgeon and prescribed Norco.
claims administrator referred Mr. McClung to Prasadarao B.
Mukkamala, M.D., for an independent medical evaluation. In
his report dated May 23, 2017, Dr. Mukkamala stated that he
reviewed past treatment notes and performed a physical
examination. According to Dr. Mukkamala, a straight leg test
from the sitting position caused no pain to 90 degrees.
However, a straight leg raising test in the supine position
did not cause pain through 70 degrees. Dr. Mukkamala found
Mr. McClung's neurological evaluation to be unremarkable.
Lumbar strain was diagnosed. Dr. Mukkamala found him to be at
maximum medical improvement with no further treatment needed.
Dr. Mukkamala advised that Mr. McClung continue his home
exercise program. Using the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), Dr. Mukkamala
opined that Mr. McClung had 5% whole person impairment for
reduced lumbar range of motion from his compensable injury.
The claims administrator suspended Mr. McClung's
temporary total disability benefits on May 30, 2017.
McClung returned to Dr. Knapp on May 30, 2017, for a
follow-up evaluation. In his office notes, Dr. Knapp noted
that he saw "minimal improvement in his lower back pain
despite four weeks of physical therapy." Mr. McClung
reported greater low back pain on his left side with
intermittent radiating pain to his bilateral lower
extremities. Dr. Knapp found reduced lumbar range of motion
during the examination and prescribed Norco, Neurontin, and a
TENS unit. Dr. Knapp also requested authorization for a
referral to a neurologist and authorization for the
medications he prescribed.
office notes from Dr. Knapp on June 13, 2017, and June 27,
2017, indicate that Mr. McClung continued to treat with Dr.
Knapp for the same symptoms of lumbar pain and lower
extremity burning. Dr. Knapp noted that Dr. Mukkamala found
Mr. McClung to be at his maximum degree of medical
improvement. However, Dr. Knapp wrote that "[f]urther
evaluation by neurologist could prove beneficial as to the
etiology of the radiculopathy."
claims administrator closed Mr. McClung's claim for
temporary total disability benefits on June 28, 2017. On July
25, 2017, the request for authorization for a referral to a
neurologist/neurosurgeon was denied. The claims administrator
based both decisions on Dr. Mukkamala's May 23, 2017,
report. Mr. McClung protested the decisions of the claims
support of his protest, Mr. McClung submitted a transcript of
his deposition taken on October 5, 2017. He testified that he
had not returned to work and had not been released to return
to work by Dr. Knapp. He also testified that he paid to see a
neurosurgeon with Neurological Associates at Charleston Area
Medical Center. He reported that he was told by the
neurologist that he did not need surgery, and he was referred
to a pain clinic for therapy. Mr. McClung testified that he
was still treating with Dr. Knapp, who was his primary
treating physician with regards to his low back injury.
claim was submitted for decision before the Office of Judges.
On May 11, 2018, the Office of Judges affirmed the claims
administrator's Order of June 28, 2017. The Office of
Judges determined that there is no medical evidence on record
rebutting Dr. Mukkamala's determination that Mr. McClung
had reached his maximum medical improvement. The Board of
Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on October 25,
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Mr.
McClung has failed to submit sufficient evidence to establish
that he has not met his maximum degree of medical
improvement. Although he submitted several reports from his
treating physician, Dr. Knapp did not establish continued
temporary disability following the closing of the claim for
benefits on June 28, 2017.
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 ...