Matthew Lydick v. Murray American Energy, Inc. ( 2023 )

FILED
February 10, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MATTHEW LYDICK,
Claimant Below, Petitioner
vs.) No. 21-0863 (BOR Appeal No. 2056790)
(Claim No. 2019023086)
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Matthew Lydick, by Counsel J. Thomas Greene Jr. and T. Colin Greene, appeals
the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Murray American Energy, Inc., by Counsel Aimee M. Stern, filed a timely response.
The issue on appeal is Mr. Lydick’s entitlement to medical treatment for his compensable
injury. The claims administrator denied a request for a one-time consultation with Michael
Bowman, M.D., on January 21, 2021. On May 14, 2021, the Workers’ Compensation Office of
Judges (“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises from
the Board of Review’s Order dated September 20, 2021, in which the Board affirmed the Order of
the Office of Judges.
This 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 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:
(c) 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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(d) 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
reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 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. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
On May 3, 2019, Mr. Lydick sustained a crush injury to his left foot in the course of and
resulting from his employment with Murray American Energy, Inc., when his foot became
entrapped under a hydraulic bucket scoop while performing his job duties. He was transported to
the Emergency Department at Wheeling Hospital from his worksite and referred to Corporate
Health, the preferred medical provider of the employer.
Mr. Lydick came under the care of C. Clark Milton, D.O., and Ross Tennant, FNP, at
Corporate Health through Wheeling Hospital on May 6, 2019. A physical examination revealed
ecchymosis and tenderness of the left foot. Mr. Lydick was observed walking without dorsiflexion
and feeling pain at the metatarsals of the left foot. Dr. Milton diagnosed a crush injury to the
metatarsals of the left foot and opined that Mr. Lydick was unable to work. He was advised to
elevate his left foot and treat it with ice and compression. After Dr. Milton’s diagnosis, the claims
administrator issued an Order dated May 13, 2019, holding the claim compensable for a crush
injury of the left foot.
Mr. Lydick began physical therapy and underwent an MRI of his left foot on May 29, 2019,
which revealed the following:
The focus of abnormal signal at the base of the third metatarsal is probably related
to small enchondroma but exact etiology is uncertain. It has a low aggressive MRI
appearance and does not have the characteristics of trauma. Follow-up studies to
help confirm stability. This is not visible on the recent plain films.
Mr. Lydick returned to Dr. Milton after the MRI, and the diagnosis of neuropraxia was raised as a
possible condition. It was recommended that he treat with a podiatrist, and he later treated with
Danny Fljalkowski, D.P.M., who diagnosed Mr. Lydick with a crush injury of the left foot and
neuritis on June 25, 2019.
Mr. Lydick attempted to return to work, but he was only able to complete two shifts due to
pain caused by the compression of his work boot on his left foot. On July 11, 2019, Dr. Milton
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recommended that Mr. Lydick see an orthopedist for a second opinion. He subsequently treated
with Prasadarao B. Mukkamala, M.D., who conducted an Independent Medical Evaluation on July
31, 2019. Dr. Mukkamala raised the issue of complex regional pain syndrome as a condition and
recommended a three-phase bone scan. At the time, Mr. Lydick was not found to be at his
maximum degree of medical improvement.
Michael Bowman, M.D., evaluated Mr. Lydick on August 30, 2019. He concurred in the
crush injury diagnosis and found that Mr. Lydick had hypersensitivity of the superficial and deep
peroneal nerves in his left foot. Dr. Bowman recommended desensitization therapy, Vitamin B12,
Neurontin, and Lyrica. On September 2, 2019, Dr. Milton concurred with the recommendations of
Dr. Bowman.
Mr. Lydick returned to Dr. Bowman on October 23, 2019. Further therapy and pain
management were recommended. Dr. Bowman stated that if that treatment failed, the next
treatment option would be a long-acting block of both nerves and neurectomy of the superficial
and deep peroneal nerves in the calf to provide relief. On November 18, 2019, Dr. Milton
diagnosed post-traumatic metatarsalgia with possible post-traumatic neuropraxia. Mr. Lydick was
kept off work and referred for pain management services.
Dr. Mukkamala conducted another Independent Medical Evaluation on December 16,
2019. It was noted that Mr. Lydick reported that he could not wear a sock and shoe and could not
let water hit his foot while showering. Again, Dr. Mukkamala found that Mr. Lydick had not
attained maximum medical improvement, but he disagreed with Dr. Bowman’s pain management
recommendation. Dr. Mukkamala believed that Elavil would be an appropriate medicine to
prescribe for Mr. Lydick’s symptoms.
Dr. Mukkamala conducted a third Independent Medical Evaluation of Mr. Lydick on June
10, 2020. Although Mr. Lydick was reluctant to move his left foot and would not allow Dr.
Mukkamala to touch it, Dr. Mukkamala found increased sensitivity over the dorsum of the left foot
in a non-anatomical distribution. Mr. Lydick was found to be suffering from nonspecific pain
complaints not supported by any objective pathology. A significant degree of symptom
magnification was also noted. Dr. Mukkamala concluded that Mr. Lydick had reached his
maximum degree of medical improvement without a need for further treatment. Although
Corporate Health was seeking a referral to pain management, Dr. Mukkamala opined that there
was no indication to refer Mr. Lydick to a pain management specialist, nor any additional
diagnostic studies and/or treatment.
Dr. Mukkamala also concluded that Mr. Lydick is not a candidate for vocational
rehabilitation, and stated:
With relation to return to work, strictly looking at the compensable injury of
5/3/2019, the claimant is capable of returning to work. If the claimant finds himself
unable to do so (perceived inability on his part), it will be because of some other
noncompensable factors and not because of the compensable injury of 5/3/2019.
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Using the American Medical Association’s, Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), Dr. Mukkamala found 4% whole person impairment based upon Mr. Lydick’s
decreased range of motion.
Mr. Lydick returned to Corporate Health on July 1, 2020, reporting no improvement to his
pain and discomfort. After examination, Mr. Tennant noted resolving ecchymosis to the distal
aspect of the second digit, as well as sensitivity to the touch of the anterior aspect of the left foot.
Mr. Lydick’s diagnosis was post-traumatic neuropraxia of the left foot. He was asked to follow-
up in six months. Subsequently, the claims administrator closed Mr. Lydick’s claim for temporary
total disability benefits in an Order dated July 23, 2020.
Mr. Lydick continued to complain of hypersensitivity and soreness on the dorsum of his
left foot, and he returned to Dr. Bowman on November 2, 2020. Dr. Bowman found no ulcerations
or lesions, normal color and temperature, and hypersensitivity on the dorsum of the foot involving
superficial and deep peroneal nerve distribution. Normal plantar distribution and sural nerve
distribution were found. Mr. Lydick was found to have good angle motion, good MCP motion,
intact tendon function, and tenderness to palpation from the anterior hind foot distally. Dr.
Bowman’s diagnoses were crush injury to the left foot and hypersensitivity of superficial and deep
peroneal nerve deep to the actual crush injury. Dr. Bowman stated, “structurally the foot is fine,
very painful.” Desensitization therapy was recommended, along with Vitamin B12 and Neurontin
or Lyrica.
On January 15, 2021, Mr. Lydick’s counsel requested authorization to receive a one-time
appointment with Dr. Bowman. Counsel stated that Mr. Lydick continues to have problems with
his left foot, and the treating physician will not schedule him for an appointment. The claims
administrator denied Mr. Lydick’s request for a one-time consultation with Dr. Bowman in an
Order dated January 21, 2021. The claims administrator stated that Dr. Mukkamala found Mr.
Lydick to be at his maximum degree of medical improvement and in need of no additional
treatment.
Mr. Lydick protested the claims administrator’s Order of January 21, 2021, and was
deposed on March 22, 2021. He expressed that he continued to experience hypersensitivity to
anything touching his left foot and wanted to seek medical treatment to permit a return to normalcy.
Mr. Lydick could not obtain any care through Corporate Health to see Dr. Bowman. When
questioned about his desire for a referral to Dr. Bowman, Mr. Lydick stated:
Well, nothing improved on the foot. The pain, the swelling, everything increased
over time. At some point it’s limited and it’s decreased but it keeps growing. More
and more that I spend on the foot rather it’s doing the basics of walking around the
house and doing anything of the sort. So at that point, it came to a point where I
just couldn’t take it anymore. I had to go back on two attempts to try to discuss with
Dr. Milton’s office to see if I can basically get another – not another opinion, but
an opinion of Dr. Bowman’s office about how he felt about [the left foot] and so
on.
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Mr. Lydick testified that he returned to Dr. Milton’s Office on July 1, 2020, and Mr. Tennant told
him to return in six months for a progress check. When he returned to Dr. Milton’s office several
months later, he was told that he was found to be at maximum medical improvement and that there
was nothing more Dr. Milton’s office could do for him.
Mr. Lydick testified that Dr. Bowman was the only physician who developed a plan for his
recovery and that he was unable to complete Dr. Bowman’s plan. On cross-examination, he
testified that when he first saw Dr. Bowman, the doctor was surprised that he was not taking
physical therapy. However, Mr. Lydick was unable to testify whether Dr. Bowman scheduled him
for a follow-up appointment.
In a Final Decision dated May 14, 2021, the Office of Judges affirmed the January 21,
2021, claims administrator Order, which denied Mr. Lydick’s request to receive a one-time
consultation with Dr. Bowman. The Office of Judges found that the record did not contain medical
evidence indicating that a referral to Dr. Bowman is medically required. Because Mr. Lydick failed
to submit any evidence for a consultation, it was determined that he did not prove by a
preponderance of the evidence that a one-time consultation is reasonably required medical
treatment for an injury received in the course of and as a result of his employment. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on September 20, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The claims administrator relied upon Dr. Mukkamala’s
assessment that Mr. Lydick has reached maximum medical improvement. The evidence of record
also establishes that Mr. Lydick has treated with Dr. Bowman three times since the date of injury,
and each time, his treatment recommendation has been essentially the same.
Affirmed.
ISSUED: February 10, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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