William Garmella v. Murray American Energy, Inc.

FILED
April 5, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
WILLIAM GARAMELLA,
Claimant Below, Petitioner
vs.) No. 21-0571 (BOR Appeal No. 2056323)
(Claim No. 2019022787)
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner William Garamella, by Counsel J. Thomas Greene Jr., 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 issues on appeal are medical and temporary total disability benefits. The claims
administrator denied authorization of physical therapy and a consultation with Adam Tune, M.D.,
on July 7, 2020. On August 7, 2020, the claims administrator closed the claim for temporary total
disability benefits. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed
the decisions in its January 29, 2021, Order. The Order was affirmed by the Board of Review on
June 16, 2021.
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:
(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).
Mr. Garamella, a coal miner, injured his abdomen on April 27, 2019, while pulling mesh
from under a rail car. A treatment note from Wheeling Hospital Emergency Room that day
indicates Mr. Garamella presented with abdominal pain. He reported that he was at work when he
felt a popping sensation in his lower abdomen. Jatinder Singh, M.D., diagnosed musculoskeletal
and abdominal pain. In a treatment note, C. Clark Milton, M.D., noted that Mr. Garamella was
seen in the emergency room that day and was evaluated for acute appendicitis, which was not
found. Mr. Garamella was treated for an abdominal groin strain.
Mr. Garamella was treated at Hudson Premier Physical Therapy for right hip strain and
strain of the adductor muscle, fascia, and tendon of the right thigh on May 8, 2019. On May 9,
2019, the claim was held compensable for strain of the muscle, fascia, and tendon of the abdomen.
Temporary total disability benefits were granted from April 28, 2019, through May 15, 2019.
In a June 4, 2019, treatment note, Dr. Milton noted that Mr. Garamella continued physical
therapy for groin and lower abdominal pain. Mr. Garamella reported improvement in his range of
motion. Dr. Milton’s impressions were subjective improvement in range of motion and resolution
of gastrointestinal symptoms. Dr. Milton opined that Mr. Garamella could return to work on June
17, 2019. Temporary total disability benefits were suspended on June 17, 2019, because Mr.
Garamella was released to return to work.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on June 17,
2019, in which he found that Mr. Garamella had reached maximum medical improvement for his
abdominal strain and needed no further treatment. He assessed 0% whole person impairment. The
claim was closed for temporary total disability benefits on July 16, 2019.
A January 9, 2020, treatment note from Wheeling Hospital Emergency Room indicates Mr.
Garamella was seen after lifting a six gallon barrel at work and pulling his right groin. He reported
that he had pulled his right groin in the past. He was diagnosed with right groin strain and left
hydrocele. An ultrasound was performed that day and showed normal testicles with a small amount
of complex fluid in the left scrotal sac.
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In a January 10, 2020, treatment note, Ross Tennant, N.P., treated Mr. Garamella for pain
radiating to the right testicle. Mr. Garamella noted that he had a previous right groin strain as a
result of an occupational injury. Mr. Tennant diagnosed right hip adductor muscle strain and
recommended physical therapy. Mr. Garamella was treated at Hudson Premier Physical Therapy
on January 14, 2020. The plan was for sessions three times a week for four weeks. The claim was
reopened for temporary total disability benefits on January 14, 2020. A right hip x-ray was
performed on January 17, 2020, for a groin injury the previous Thursday while Mr. Garamella was
carrying something heavy. The impression was no acute abnormalities.
In a February 7, 2020, treatment note, Mr. Tennant stated that the treatment with physical
therapy had improved Mr. Garamella’s pain, though he still had some pain with repetitive activity.
The diagnosis was right hip abductor muscle strain, and it was noted that Mr. Garamella was unable
to return to work. Mr. Garamella returned on February 14, 2020, and stated that he had increased
right groin pain since his physical therapy had been advancing. Mr. Tennant stated that Mr.
Garamella could return to work on February 17, 2020, with the restrictions of no lifting, pushing,
or pulling over ten pounds. On February 28, 2020, Mr. Garamella returned and stated that his right
groin pain was worse than it had ever been. Mr. Tennant diagnosed right hip abductor muscle
strain and lumbar strain with radiculopathy. It was noted that there had been no relief provided by
physical therapy. Mr. Tennant opined that the pain may be the result of a radicular back issue and
recommended physical therapy. Lumbar x-rays taken that day showed mild degenerative changes.
Mr. Tennant recommended an MRI and opined that Mr. Garamella was not able to return to work
at that time.
A lumbar MRI was performed on April 3, 2020, and revealed a chronic left L5-S1
paracentral disc herniation that could compromise the left S1 nerve root and a mild disc bulge and
small annular tear at L4-5, but there were no specific findings to explain the right lower extremity
radiculopathy.
In an April 10, 2020, treatment note, Mr. Tennant noted that Mr. Garamella still had
significant lower back pain that radiated to the right thigh. It was noted that he was not working.
The diagnoses were right hip abduction muscle strain, lumbar strain with radiculopathy, chronic
L5-S1 disc herniation, and mild disc bulge and annular tear at L4-5. Mr. Tennant recommended a
consultation at WVU Neurosurgery. Mr. Garamella was to continue physical therapy and was
unable to return to work. Mr. Garamella returned on May 21, 2020, and stated that despite finishing
his strengthening and conditioning program, he still had significant lower back pain that radiated
to the right groin as well as numbness and tingling in the right foot. The diagnoses remained the
same, and Mr. Garamella remained unable to work. A May 27, 2020, Attending Physician’s Report
indicates Mr. Garamella was not at maximum medical improvement, and the estimated period of
disability was from May 27, 2020, through June 8, 2020.
David Cohen, M.D., with Wheeling Neurosurgery, stated in a June 8, 2020, treatment note
that Mr. Garamella presented with lower back pain that radiated to the bilateral legs and into the
right foot for approximately six to seven months. Dr. Cohen diagnosed chronic bilateral low back
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pain with bilateral sciatica, lumbar radiculopathy, and bulging disc without myelopathy. Surgery
was not recommended, and Mr. Garamella was referred to pain management.
On June 9, 2020, Mr. Tennant stated that he would seek authorization for a consultation
with Dr. Tune, a pain medicine specialist. Mr. Garamella was to resume physical therapy and
remained unable to work. A Disability Status Form was completed indicating Mr. Garamella could
not perform work activity of any kind until approximately July 9, 2020. A June 10, 2020, Attending
Physician’s Report indicates Mr. Garamella was not at maximum medical improvement and would
be disabled from June 9, 2020, through July 10, 2020.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on June 30,
2020, in which he diagnosed resolved abdominal strain. He opined that Mr. Garamella’s current
complaints were not the result of the compensable injury and were also unrelated to the
exacerbation he experienced in January of 2020. It was noted that Mr. Garamella had a prior back
injury and a significant amount of pre-existing degenerative spondyloarthropathy. Dr. Mukkamala
opined that Mr. Garamella’s current symptoms were the result of the preexisting
spondyloarthropathy. He further opined that Mr. Garamella had reached maximum medical
improvement and required no further treatment. Dr. Mukkamala stated that referral to a pain clinic
would be to address the pre-existing condition and not the compensable injury. He assessed 0%
impairment.
On July 7, 2020, the claims administrator denied authorization of physical therapy and a
consultation with Dr. Tune. The claims administrator closed the claim for temporary total disability
benefits on August 7, 2020. On July 9, 2020, Mr. Tennant stated in a treatment note that Mr.
Garamella had seen no improvement since his previous examination. The diagnoses remained right
hip adductor muscle strain, lumbar strain with radiculopathy, chronic L5-S1 disc herniation, and
mild disc bulge with annular tear at L4-5. Mr. Garamella remained unable to work. Mr. Tennant
completed a Disability Status Form stating that Mr. Garamella was unable to perform work of any
kind.
In a treatment note, Dr. Tune diagnosed lumbar disc displacement without myelopathy,
lumbosacral disc degeneration, lumbosacral radiculitis, and disc annular tear on July 20, 2020. On
that same day, Mr. Garamella returned to Mr. Tennant complaining of significant lower back pain
that radiated into the right thigh. It was noted that Mr. Garamella was scheduled for lumbar
epidural steroid injections. He was not working and did not believe he would be able to perform
any of his job functions at that time. Mr. Tennant completed an Attending Physicians’ Report on
July 20, 2020, stating Mr. Garamella was not at maximum medical improvement and would be
disabled from July 20, 2020, to October 20, 2020.
A lumbosacral MRI was performed on July 27, 2020, and showed postoperative changes
at L5-S1 but no recurrent disc herniation. The claim was closed for temporary total disability
benefits on August 7, 2020. Mr. Garamella underwent lumbar x-rays on August 26, 2020, which
showed lumbar degenerative changes that remained stable when compared to the June 23, 2016,
x-rays.
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Mr. Garamella testified in a September 23, 2020, deposition that following his initial injury
he underwent physical therapy and returned to work. On January 9, 2020, Mr. Garamella reinjured
his back while lifting at work. His claim was reopened, and he started receiving temporary total
disability benefits. Mr. Tennant has not released him to return to work, and he still has pain in his
back and down his legs. Mr. Garamella testified that between his initial injury and the date he first
returned to work, June 17, 2019, he did not experience any back pain.
Mr. Tennant testified in a deposition on October 28, 2020, that Mr. Garamella initially
developed right groin strain as a result of the compensable injury. About six months later he
developed lower back pain with radiculopathy. Mr. Garamella underwent physical therapy but saw
no improvement. Dr. Tune evaluated Mr. Garamella but saw no surgical options and instead
recommended steroid injections. Mr. Tennant opined that the lumbar MRI findings were
degenerative in nature. He stated that Mr. Garamella still required treatment and was still
temporarily and totally disabled. Mr. Tennant testified that it was possible Mr. Garamella’s current
symptoms were the result of his prior low back problems rather than the compensable injury. He
noted that the MRI showed degenerative changes and stated that his request for a referral to the
pain clinic was for the diagnoses of L5-S1 disc herniation and L4-5 disc bulge. Mr. Tennant
testified that Mr. Garamella was unable to work due to pain, the L5-S1 disc herniation, and the
L4-5 disc bulge.
In its January 29, 2021, Order, the Office of Judges affirmed the claims administrator’s
decisions denying authorization for a request for a consult with Dr. Tune as well as physical
therapy and closing the claim for temporary total disability benefits. It found that Dr. Mukkamala
stated in his evaluation that the compensable condition in the claim is abdominal strain and that
Mr. Garamella had reached maximum medical improvement for that condition. Dr. Mukkamala
found that Mr. Garamella’s current complaints of low back pain are the result of pre-existing
degenerative changes and not the compensable injury. Dr. Mukkamala noted that Mr. Garamella
had a prior back injury and a significant degree of degenerative pre-existing spondyloarthropathy.
The Office of Judges found his opinion to be persuasive and supported by the evidence of record.
It therefore concluded that the consultation with pain management specialist Dr. Tune as well as
additional physical therapy were not necessary treatment for a compensable condition in the claim.
Regarding the closure of the claim for temporary total disability benefits, the Office of
Judges stated that Mr. Garamella was found to be at maximum medical improvement by Dr.
Mukkamala on June 30, 2020. Further, Mr. Tennant testified that Mr. Garamella was unable to
return to work due to non-compensable conditions. Mr. Tennant also testified that the referral to
Dr. Tune and request for additional physical therapy were made to treat Mr. Garamella’s low back
and radicular issues. He believed Mr. Garamella’s current symptoms were the result of his non-
compensable pre-existing degenerative issues. The Office of Judges found Mr. Tennant’s
testimony to be persuasive and concluded that a preponderance of the evidence shows Mr.
Garamella reached maximum medical improvement for his compensable injury. He is therefore
not entitled to further temporary total disability benefits. The Board of Review affirmed the Office
of Judges’ Order on June 16, 2021.
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After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. West Virginia Code § 23-4-3(a)(1) provides that the claims
administrator must provide medically related and reasonably required sums for healthcare services,
rehabilitation services, durable medical and other goods, and other supplies. 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.
A preponderance of the evidence indicates that the requested treatment and additional
temporary total disability benefits are not necessary for a compensable condition in the claim. The
evidence shows that Mr. Garamella’s current symptoms are the result of pre-existing non-
compensable degenerative changes and not the compensable injury. Further, he appears to have
reached maximum medical improvement for his compensable injury. Therefore, we affirm the
denial of authorization for a request for a consult with Dr. Tune, as well as physical therapy, and
closure of the claim for temporary total disability benefits.
Affirmed.
ISSUED: April 5, 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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