                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MARK TENNANT,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0275 (BOR Appeal No. 2047743)
                   (Claim No. 2011040573)

NORTH AMERICAN SERVICES GROUP, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Mark Tennant, by Jonathan C. Bowman, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. North American Services Group,
LLC, by Lucinda Fluharty, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 11, 2013, in
which the Board affirmed an October 4, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 30,
2011, decision closing the claim for temporary total disability benefits. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        Mr. Tennant worked for North American Services Group, LLC. On June 12, 2011, he
burned both of his feet while cleaning up a chemical spill. The claims administrator held the
claim compensable for first degree burns. Mr. Tennant then came under the care of Stephen H.
Mascio, D.O., who found that he had lost sensation to light tough at the heels and plantar aspects
of his toes. Dr. Mascio also found that his pain prevented Mr. Tennant from wearing his work
boots. Dr. Mascio diagnosed Mr. Tennant with neuropathy due to chemical exposure and
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requested that condition be added to the claim. Dr. Mascio also requested that abnormal gait be
added as a compensable condition. The claims administrator denied inclusion of the additional
conditions. An electromyography (EMG) test was then performed on Mr. Tennant’s feet, which
was essentially normal except that mild sensory polyneuropathy secondary to diabetes could not
be ruled out by the study. Stephen R. Timms, M.D., then treated Mr. Tennant and found that his
diabetes mellitus was well controlled. Dr. Timms instead attributed Mr. Tennant’s current
symptoms to the compensable chemical burn. Joseph E. Grady II, M.D., then evaluated Mr.
Tennant and found that the etiology of his current foot pain was uncertain. Dr. Grady also found
that Mr. Tennant’s bilateral foot burns had healed. Dr. Grady suggested that Mr. Tennant’s
symptoms could be the result of diabetes. Dr. Grady, furthermore, believed that he had reached
his maximum degree of medical improvement for the compensable condition. On December 30,
2011, the claims administrator closed Mr. Tennant’s claim for temporary total disability benefits.
Jack Riggs, M.D., then evaluated Mr. Tennant and found that he had mild peripheral neuropathy
which he believed was attributable to diabetes mellitus. On October 4, 2012, the Office of Judges
affirmed the claims administrator’s December 30, 2011, decision. The Board of Review affirmed
the Order of the Office of Judges on February 11, 2013, leading Mr. Tennant to appeal.

        The Office of Judges concluded that Mr. Tennant had reached his maximum degree of
medical improvement with respect to the June 12, 2011, injury. The Office of Judges noted that
the claims administrator’s decision rejecting the diagnosis of neuropathy and abnormal gait had
already been affirmed by a June 28, 2012, Order of the Office of Judges. In its October 4, 2012,
Order, the Office of Judges relied upon Dr. Grady’s evaluation and found that Dr. Grady had not
even placed Mr. Tennant under any work restrictions. The Office of Judges found that the only
evidence in support of Mr. Tennant’s request for additional temporary total disability benefits
following the claims administrator’s closure of the claim was the treatment notes of Dr. Timms.
The Office of Judges, however, did not rely on Dr. Timms’s opinion because he never
specifically found that Mr. Tennant continued to be disabled as a result of a compensable
condition of the claim. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

        The decision of the Board of Review is based on a material misstatement or
mischaracterization of the evidence. Mr. Tennant has demonstrated that he continues to be
disabled as a result of his compensable injury, and he is entitled to additional temporary total
disability benefits related to that disability. The evidence in the record demonstrates that the
diagnoses of neuropathy and abnormal gait are causally related to the compensable injury. It
further demonstrates that Mr. Tennant is still experiencing symptoms of these diagnoses which
prevent him from returning to work without restrictions. The evaluation of Dr. Grady is not
sufficient to show that Mr. Tennant has reached his maximum degree of medical improvement
because Dr. Grady did not believe that the diagnoses of neuropathy and abnormal gait should be
added as compensable conditions of the claim. Dr. Mascio’s and Dr. Timms’s treatment notes
demonstrate that Mr. Tennant continues to be temporarily and totally disabled due to the June 12,
2011, injury, and their opinions are supported by the record as a whole.

       For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement and mischaracterization of particular components of the evidentiary
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record. Therefore, the decision of the Board of Review is reversed and remanded with
instructions to reopen Mr. Tennant’s claim on a temporary total disability basis and grant him
benefits as substantiated by proper evidence.


                                                                     Reversed and Remanded.

ISSUED: January 20, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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