Judy A. Joseph v. Monongalia County Board of Education ( 2014 )


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  •                              STATE OF WEST VIRGINIA
    FILED
    SUPREME COURT OF APPEALS                               June 11, 2014
    RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    JUDY A. JOSEPH,                                                               OF WEST VIRGINIA
    Claimant Below, Petitioner
    vs.)   No. 13-0154	 (BOR Appeal No. 2047492)
    (Claim No. 2011023193)
    MONONGALIA COUNTY BOARD OF EDUCATION,
    Employer Below, Respondent
    MEMORANDUM DECISION
    Petitioner Judy A. Joseph, by Robert Stultz, her attorney, appeals the decision of the West
    Virginia Workers’ Compensation Board of Review. The Monongalia County Board of
    Education, by Steven Wellman, its attorney, filed a timely response.
    This appeal arises from the Board of Review’s Final Order dated January 23, 2013, in
    which the Board affirmed a July 13, 2012, Order of the Workers’ Compensation Office of
    Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 1, 2011,
    decision closing Ms. Joseph’s claim for temporary total disability benefits. The Office of Judges
    also affirmed the claims administrator’s June 24, 2011, decision denying Ms. Joseph’s request
    for authorization of physical therapy from May 11, 2011, through June 17, 2011. The Court has
    carefully reviewed the records, written arguments, and appendices contained in the briefs, and
    the case is mature for consideration.
    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.
    Ms. Joseph injured her lumbar spine on January 5, 2011, while maneuvering a cart filled
    with food items. The claim was held compensable for lumbar strain on January 17, 2011.
    Following the compensable injury, Ms. Joseph began treating with John David Lynch Jr., M.D.,
    who noted that Ms. Joseph was experiencing constant low back pain with numbness radiating
    into the lower extremities. At Dr. Lynch’s recommendation, Ms. Joseph began physical therapy
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    with Kimbraly Kettler, M.P.T. After two months of physical therapy, Ms. Kettler noted that Ms.
    Joseph appeared to have reached a treatment plateau. Dr. Lynch indicated that he wished for Ms.
    Joseph to continue physical therapy, and after an additional two months of therapy Ms. Kettler
    again opined that Ms. Joseph had reached a treatment plateau. On March 29, 2011, Marsha Lee
    Bailey, M.D., evaluated Ms. Joseph. After reviewing Ms. Joseph’s medical records, Dr. Bailey
    concluded that Ms. Joseph suffers from chronic low back pain that predated the compensable
    injury by ten years. She further concluded that the majority of Ms. Joseph’s symptoms are the
    result of her pre-existing condition, and opined that Ms. Joseph is at maximum medical
    improvement in regard to the compensable injury. Additionally, Dr. Bailey noted that Ms. Joseph
    reported that she is unable to return to work because light duty employment is unavailable to her.
    On April 1, 2011, the claims administrator closed Ms. Joseph’s claim for temporary total
    disability benefits. On June 24, 2011, the claims administrator denied Ms. Joseph’s request for
    authorization of physical therapy from May 11, 2011, through June 17, 2011.
    In its Order affirming the April 1, 2011, and June 24, 2011, claims administrator’s
    decisions, the Office of Judges held that the claim was properly closed for temporary total
    disability benefits and further held that authorization for additional physical therapy was properly
    denied because additional physical therapy does not constitute reasonable and necessary medical
    treatment in the instant claim. Ms. Joseph disputes these findings and asserts that the evidence of
    record demonstrates that she is entitled to authorization for additional physical therapy from May
    11, 2011, through June 17, 2011, and is also entitled to a reopening of her claim for temporary
    total disability benefits.
    The Office of Judges relied on West Virginia Code § 23-4-7a (2005), which states that
    temporary total disability benefits are not paid after a claimant has reached maximum medical
    improvement, is released to return to work, or actually returns to work, whichever occurs first.
    The Office of Judges noted that Dr. Bailey found that Ms. Joseph had reached maximum medical
    improvement on March 29, 2011, which is well before the requested temporary total disability
    onset date of May 11, 2011. The Office of Judges therefore found that because Ms. Joseph has
    reached maximum medical improvement, she is no longer entitled to temporary total disability
    benefits pursuant to West Virginia Code § 23-4-7a. The Office of Judges went on to find that the
    evidence of record indicates that Ms. Joseph reached a treatment plateau and was receiving no
    additional benefit from continued physical therapy. The evidence of record documents that Ms.
    Joseph initially reached a treatment plateau approximately one month before the first requested
    physical therapy treatment date. The Office of Judges then concluded that physical therapy is not
    medically necessary at the present time. The Board of Review reached the same reasoned
    conclusions in its January 23, 2013, decision. We agree with the reasoning and conclusions of
    the Board of Review.
    For the 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
    evidentiary record. Therefore, the decision of the Board of Review is affirmed.
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    Affirmed.
    ISSUED: June 11, 2014
    CONCURRED IN BY:
    Chief Justice Robin J. Davis
    Justice Brent D. Benjamin
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
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Document Info

Docket Number: 13-0154

Filed Date: 6/11/2014

Precedential Status: Precedential

Modified Date: 10/30/2014