Skidmore v. United Parcel Service, Inc. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
BRIAN K. SKIDMORE,
FILED
Claimant Below, Petitioner
May 20, 2021
EDYTHE NASH GAISER, CLERK
vs.) No. 20-0106 (BOR Appeal No. 2054390) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2018002767)
UNITED PARCEL SERVICE, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Brian K. Skidmore, by Counsel Robert L. Stultz, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). United Parcel
Service, Inc., by Counsel Jeffrey B. Brannon, filed a timely response.
The issue on appeal is temporary total disability benefits. The claims administrator closed
the claim for temporary total disability benefits on January 30, 2018. The Workers’ Compensation
Office of Judges (“Office of Judges”) affirmed the decision in its June 26, 2019, Order. The Order
was affirmed by the Board of Review on January 15, 2020.
The 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 Procedure.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions[.]
....
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(c) If the decision of the board represents an affirmation of a prior ruling by both
the commission and the office of judges that was entered on the same issue in the
same claim, the decision of the board may be reversed or modified by the Supreme
Court of Appeals only if the decision is in clear violation of Constitutional or
statutory provision, is clearly the result of erroneous conclusions of law, or is based
upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo re-
weighing of the evidentiary record. . . .
See Hammons v. West Virginia Off. of Ins. Comm’r, 235 W. Va. 577, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. West Virginia
Off. of Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Skidmore, a driver, injured his left ankle in the course of his employment on July 27,
2017, when he stepped off of a curb. The August 3, 2017, Employees’ and Physicians’ Report of
Injury indicates Mr. Skidmore injured his left ankle at work and listed the diagnosis as left Achilles
tendon. Mr. Skidmore sought treatment for his injury on August 3, 2017, from David Watson,
M.D., at MedExpress. Examination showed soft tissue swelling. Dr. Watson diagnosed synovitis
and tenosynovitis of the left ankle and foot. Mr. Skidmore returned to MedExpress on August 10,
2017, for worsening symptoms. Edward Neely, M.D., diagnosed left ankle and foot synovitis and
tenosynovitis and left ankle sprain.
Mr. Skidmore was referred to Richard Topping, M.D., an orthopedist. On August 22, 2017,
Mr. Topping diagnosed left ankle sprain with posterior tibial tendon injury. He recommended an
MRI. The MRI was performed on September 13, 2017, and showed a possible mild sprain of the
spring ligament and mild fluid in the talocalcaneal joint space. On October 2, 2017, Dr. Topping
noted that Mr. Skidmore’s symptoms had improved with bracing and light duty for a month and
then temporary total disability benefits when light duty was no longer available. Dr. Topping
recommended physical therapy for two to three weeks. Mr. Skidmore required a functional
capacity evaluation before returning to work.
Mr. Skidmore was treated at Elkins Physical Therapy from October 4, 2017, through
January 26, 2018. In an October 23, 2017, treatment note, Dr. Topping noted that Mr. Skidmore
reported continued pain. Dr. Topping recommended a functional capacity evaluation to determine
Mr. Skidmore’s ability to return to work. On January 31, 2018, Elkins Physical Therapy sent a
letter to Dr. Topping stating that Mr. Skidmore underwent a Functional Capacity Evaluation,
which showed that he could work at the sedentary level. The results were found to be valid. The
claims administrator granted twelve additional physical therapy sessions on January 4, 2018.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on January
23, 2018, in which he found that Mr. Skidmore had reached maximum medical improvement. Dr.
Mukkamala found 1% permanent partial disability. The claims administrator closed the claim for
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temporary total disability benefits on January 30, 2018. In a separate decision that day, the claims
administrator granted Mr. Skidmore a 1% permanent partial disability award.
Mr. Skidmore returned to Dr. Topping on February 12, 2018, with complaints of pain and
limited range of motion. Dr. Topping recommended physical therapy followed by a joint injection
if necessary. Mr. Skidmore underwent physical therapy at Seven Performance from February 16,
2018, through May 18, 2018. On April 17, 2018, Dr. Topping noted that physical therapy improved
Mr. Skidmore’s symptoms. Dr. Topping recommended a work hardening program. On May 1,
2018, it was noted that Mr. Skidmore’s symptoms had improved again. He was to undergo a work
hardening program. Dr. Topping indicated Mr. Skidmore was unable to work from May 1, 2018,
through June 5, 2018.
Kyle West, a physical therapist at Seven Performance, completed a physical therapy
recertification note on May 18, 2018, stating that Mr. Skidmore had improved with physical
therapy but required additional visits to increase functional capacity. Dr. Topping released Mr.
Skidmore to return to work without restrictions on July 16, 2018.
Mr. Skidmore testified in a deposition on May 6, 2019, that he returned to work on July
25, 2018. Mr. Skidmore stated that he was also treated for a noncompensable condition and was
off of work for that condition from October of 2017 through July of 2018.
The Office of Judges affirmed the claims administrator’s closure of the claim for temporary
total disability benefits in its June 26, 2019, Order. The Office of Judges found that Dr. Mukkamala
opined that Mr. Skidmore had reached maximum medical improvement on January 23, 2018;
however, treatment records from his orthopedic surgeon and physical therapist indicate Mr.
Skidmore was not at his maximum degree of medical improvement. The Office of Judges noted
that this case is complicated by the fact that Mr. Skidmore also suffers from a noncompensable
condition that rendered him unable to work. Mr. Skidmore testified in a deposition that he was
unable to return to work until July 25, 2018, due to the noncompensable condition. The Office of
Judges determined that none of the treatment notes from Dr. Topping, Elkins Physical Therapy
Service, or Seven Performance indicate they were aware of Mr. Skidmore’s noncompensable
condition. Dr. Mukkamala was the only physician of record to consider Mr. Skidmore’s
noncompensable condition and the effect it had on his ability to return to work. The Office of
Judges therefore concluded that Dr. Mukkamala was in the best position to determine the effect
Mr. Skidmore’s compensable ankle injury had on his ability to return to work. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on January 15, 2020.
After 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 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. Mr. Skidmore
testified in a deposition that he was unable to return to work until July 25, 2018, due to a
noncompensable condition. Though treatment notes from his treating physician and physical
therapists indicate he was not at maximum medical improvement for his left ankle injury, the
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evidence indicates they were not aware of Mr. Martin’s noncompensable condition and how it
affected his ability to return to work. The Office of Judges was not clearly wrong to find Dr.
Mukkamala’s opinion to be the most reliable of record. Therefore, the decision of the Board of
Review is affirmed.
Affirmed.
ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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