Jay Hannah v. United Parcel Service, Inc. ( 2020 )

s
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JAY HANNAH, FILED
Claimant Below, Petitioner July 31, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 19-0557 (BOR Appeal No. 2053914) OF WEST VIRGINIA
(Claim No. 2018014744)
UNITED PARCEL SERVICE, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Jay Hannah, a self-represented litigant, 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 additional compensable conditions. The claims administrator held
the claim compensable for right hip bursitis but denied the addition of low back pain, right hip
pain, right buttock pain, sacroiliac joint pain, and incomplete lesion of the thoracic spinal cord to
the claim on November 8, 2018. The Office of Judges affirmed the decision in its January 29,
2019, Order. The Order was affirmed by the Board of Review on May 17, 2019.
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.
Jay Hannah, a UPS driver, injured his buttocks and hip sitting on an insufficiently padded
seat while delivering packages. Inspection reports indicate Mr. Hannah reported on December 4,
2017, that the truck seat needed replaced because the cushioning had worn out of it. In a second
report, he again stated that the seat needed replaced. The mechanic wrote that the truck was okay
to drive. Mr. Hannah submitted an Attending Physician’s Report on December 14, 2017, stating
that he could return to work with restrictions on December 21, 2017. The diagnosis was listed as
ischial tuberitis/bursitis.
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In a February 27, 2018, record review, Prasadarao Mukkamala, M.D., opined that there
was no credible, objective medical evidence that Mr. Hannah sustained an injury on or around
December 13, 2017. Dr. Mukkamala further opined that the diagnosis by MedExpress was
unsupported. He stated that Mr. Hannah reported nonspecific complaints of pain and that there
was no credible evidence he sustained an injury.
David Soulsby, M.D., performed a record review on February 27, 2018, in which he stated
that ischial bursitis is caused by excessive or inappropriate physical exercise or prolonged sitting.
The condition is rare and causes pain in the buttock and usually a soft tissue mass. Dr. Soulsby
opined that there was no justification for a diagnosis of sciatica in this case. He also opined that
Mr. Hannah did not suffer from ischial bursitis since there was no soft tissue mass present in the
buttocks. Dr. Soulsby stated that, at most, Mr. Hannah could have suffered tenderness or a
contusion to the buttocks. However, he opined that the condition would not require medical
intervention. He concluded that the medical records failed to support an injury related to Mr.
Hannah’s work that would be severe enough to warrant medical attention.
Mr. Hannah testified in a March 9, 2018, hearing before the Office of Judges that he had
no preexisting problems with either his buttocks or low back. He stated that his seat was not
replaced until December 13, 2017, after he was no longer able to work due to his injury. He
asserted that the new seat is twice the size of the old one. Mr. Hannah testified that he reported
that he needed a new seat twice and then told human resources about the problem. He stated that
when he was driving, his buttocks would hit the bottom of the seat, which caused pain in his
buttocks and sciatic nerve.
In a March 28, 2018, treatment note, Dr. Hanna diagnosed right buttock pain, right ischial
bursitis, sacroilitis, and myofascial muscle pain. He opined that the conditions were the result of
Mr. Hannah’s work-related injury. On April 2, 2018, the Office of Judges reversed a claims
administrator’s decision and held the claim compensable for contusion of buttocks. On July 13,
2018, Steven Eddy, D.C., diagnosed lumbar ligament sprain, sacroiliac joint sprain, and sciatica.
Dr. Soulsby performed a second record review on July 13, 2018, in which he diagnosed
right sided lower back pain, sacroilitis, and buttock contusion. He opined that there was no credible
evidence that an injury occurred on or around December 13, 2017. Dr. Soulsby stated that it was
possible that if a person drove a truck for several weeks on an unpadded seat that he would develop
a buttock contusion. However, such circumstances would cause no more than a bruise, which
would resolve in a few weeks. Dr. Soulsby found no documentation of an actual buttock contusion
in the record. Dr. Soulsby stated that most reports indicate a diagnosis of sacroiliac joint pain.
Since a sacroiliac joint injection gave 80% relief, it was persuasive evidence that sacroilitis is the
correct diagnosis for Mr. Hannah’s symptoms. Dr. Soulsby therefore concluded that he had no
buttock injury and was instead experiencing lower back and sacroilitis pain. Dr. Soulsby found
that Mr. Hannah developed lower back pain and sacroilitis unrelated to his work. Sacroilitis is
commonly associated with arthritis. He determined that chiropractic treatment, physical therapy,
and injections are not necessary for the compensable condition of buttock contusion.
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In a July 16, 2018, supplemental report, Dr. Mukkamala noted that Mr. Hannah did not
appear for his scheduled evaluation. Dr. Mukkamala opined that it was highly questionable that he
sustained an injury on or around December 13, 2017. He stated that if Mr. Hannah did sustain an
injury, buttock contusion would be an appropriate diagnosis. He found no evidence that he
developed ischial bursitis, sacroilitis, or myofascial pain as a result of his compensable injury. He
also found that the December 14, 2017, MedExpress findings failed to support a diagnosis of
sacroilitis. Dr. Mukkamala opined that a buttock contusion should resolve in one to two weeks. By
the time Mr. Hannah started missing work in January of 2018, his compensable injury would have
been healed. Dr. Mukkamala opined that Mr. Hannah required no further treatment and was not
temporarily and totally disabled. He could return to full duty work.
In a July 16, 2018, affidavit, Charles Kuhl, stated that he performed surveillance of Mr.
Hannah on July 12, 2018. He observed Mr. Hannah driving a truck and walking rapidly with no
visible signs of pain. Mr. Kuhl stated that Mr. Hannah drove eighty-three miles, without stopping,
to a casino and walked quickly inside with no signs of pain after exiting the vehicle.
In a July 17, 2018, hearing before the Office of Judges, Mr. Hannah testified that the seat
in his work truck had no padding. He stated that he purchased rental property on December 7,
2017, and rents them out via his own company. Mr. Hannah testified that the rentals require no
work. Mr. Hannah stated that he worked modified duty until December 28, 2017. He then returned
to work after his sacroiliac injection and worked for two to three weeks. He was then placed on
modified duty by his physician, but his employer refused modified duty as the claim was not
compensable at that time. Mr. Hannah admitted that he fixed a few things in his rental properties
such as sinks and toilets and also golfed while he was off of work. He stated that he missed an
independent medical evaluation with Dr. Mukkamala because he was notified two days prior and
already had plans for that day.
On July 20, 2018, the Board of Review affirmed and modified an April 2, 2018, Office of
Judges’ Order to reflect that the claim was compensable for bursitis of the right hip. The Board
noted that the current evidence was insufficient to establish the diagnosis of lumbago with sciatica.
On August 17, 2018, the Office of Judges affirmed the claims administrator’s decision closing the
claim for temporary total disability benefits.
Dr. Hanna completed a diagnosis update on August 21, 2018, listing the diagnoses as low
back pain, right hip pain, right buttock pain, sacroiliac joint pain, and thoracic spinal cord lesion.
On August 23, 2018, Patrick Huck, P.A., wrote a letter indicating that Mr. Hannah was seen from
January of 2018 to the present for ischial bursitis and right sacroiliac pain.
The claims administrator held the claim compensable for bursitis of the right hip and denied
the addition of low back pain, right hip pain, right buttock pain, sacroiliac joint pain, and
unspecified thoracic spine lesion to the claim on November 8, 2018. On December 4, 2018, this
Court affirmed a Board of Review decision which affirmed an Office of Judges Order denying the
addition of chronic pain syndrome, myalgia, cervicalgia, and low back pain to the claim.
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In its January 29, 2019, Order, the Office of Judges affirmed the claims administrator’s
decision holding the claim compensable for right hip bursitis and denying the addition of low back
pain, right hip pain, right buttock pain, sacroiliac joint pain, and unspecified thoracic spine lesion
to the claim. Regarding low back pain, the Office of Judges found that the only physician of record
to diagnose the condition was Dr. Hanna, who listed the diagnoses in his March 28, 2018, and
August 21, 2018, reports. The Office of Judges further noted that the requested diagnosis is a
symptom rather than a medical condition appropriate for compensability. The Office of Judges
used the same reasoning to determine that right hip pain should not be added to the claim. The
claim is already compensable for right hip bursitis, which would include pain associated with the
condition. Regarding right buttock pain, the Office of Judges found that the issue was previously
litigated before the Office of Judges on August 17, 2018. In that decision the Office of Judges
found that the condition is a symptom, not a diagnosis and was therefore not a compensable
condition. That decision was affirmed by the Board of Review. The Office of Judges in the instant
case found that the request was duplicative and denied compensability of the condition. Regarding
sacroiliac joint pain, the Office of Judges determined that it had previously determined in its
August 17, 2018, Order that sacroilitis should not be added to the claim. Therefore, the Office of
Judges concluded in the instant case that pain associated with the condition should not be held
compensable. It also noted that the diagnosis is a symptom rather than a condition. Finally, in
regard to unspecified thoracic spine lesion, the Office of Judges concluded that there are no clinical
records or objective evidence relating the condition to the compensable injury, and Dr. Hanna
failed to discuss a causal connection. The Office of Judges found that the diagnosis appeared “out
of the blue” and is not related to the compensable injury. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed its Order on May 17, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. All of the diagnoses on appeal, aside from thoracic spine lesion,
are symptoms, not diagnoses, and therefore cannot be held compensable. See Harpold v. City of
Charleston, No. 18-0730, 2019 WL 1850196 at *3 (W. Va. April 25, 2019) (memorandum
decision) (holding that left knee pain is a symptom, not a diagnosis, and therefore cannot be added
to a claim), Radford v. Panther Creek Mining, LLC, No. 18-0806, 2019 WL 4415245 at *3 (W.
Va. Sep. 13, 2019) (memorandum decision) (holding that neck and shoulder pain cannot be added
to a claim as they are symptoms, not diagnoses). Regarding the addition of thoracic spine lesion
to the claim, the Office of Judges was correct to find the condition noncompensable. There is no
medical evidence of record opining a causal connection between the condition and the
compensable injury.
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: July 31, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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