                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              February 10, 2016
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
EDDIE JINNIS,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1121 (BOR Appeal No. 2049368)
                   (Claim No. 2013013411)

SUMMIT ENVIRONMENTAL SERVICES, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Eddie Jinnis, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Summit Environmental Services, LLC,
by Alyssa A. Sloan, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 1, 2014, in
which the Board affirmed a March 24, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 11, 2013,
decision denying the reopening request for further 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 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.

       Mr. Jinnis, an employee of Summit Environmental Services, LLC, was working in the
furnace area when a fire started on August 6, 2012. Mr. Jinnis injured his knee and wrist while
attempting to escape. Mr. Jinnis was seen at Norton Community Hospital for his injuries. X-rays
were obtained of the right wrist, left wrist, and left knee. They were interpreted as unremarkable.
Mr. Jinnis was examined and diagnosed with a second degree burn of the wrist, a knee injury,
and a sprain. On August 7, 2012, a report from Thomas Daugherty, M.D., was issued. Dr.
Daugherty examined Mr. Jinnis and found tenderness in the left knee along the medial joint line
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but no effusion. Dr. Daugherty opined that Mr. Jinnis should be able to make some reasonable
progress. A work slip was completed indicating he would be unable to work for ten days. On
August 16, 2012, Mr. Jinnis filled out his report of injury. On August 24, 2012, his claim was
held compensable. From August 30, 2012, through April 19, 2013, Mr. Jinnis was treated by Jiab
Suleiman, M.D. Injections were administered on March 14, 2013, due to tendonitis of the knee.
It was noted on March 29, 2013, that Mr. Jinnis suffered from derangement of the knee and was
to remain off work until being re-evaluated on May 13, 2013.

        On September 12, 2013, Mr. Jinnis underwent an MRI of the left knee. It revealed a small
amount of effusion. There was no high grade internal derangement or medial meniscus tear. Mild
swelling was noted within the Hoffa’s fat pad. There was no high grade chondromalacia patella
or patellofemoral dislocation. On May 14, 2013, an independent medical evaluation from
William Gonte, M.D., was made available. Dr. Gonte diagnosed a left knee contusion, medical
collateral ligament strain of the left knee, and status post second degree burns to the right wrist
and right shoulder which had resolved. He opined that Mr. Jinnis had not reached his maximum
degree of medical improvement and would benefit from additional physical therapy, a knee
brace, and anti-inflammatory treatment.

        On June 4, 2013, Mr. Jinnis filled out his reopening application for further temporary
total disability benefits. It was completed by Dr. Suleiman. Although he indicated there had been
no aggravation or progression of Mr. Jinnis’s disability, he noted Mr. Jinnis was still attending
physical therapy for the left knee and still experienced pain and stiffness as well as swelling. Dr.
Suleiman advised Mr. Jinnis not to return to work at that time. The claims administrator denied
Mr. Jinnis’s application for further permanent partial disability benefits on July 11, 2013. The
claims administrator determined that the application failed to disclose a progression or
aggravation in the allowed condition or some fact not previously considered which would entitle
Mr. Jinnis to greater benefits than he already received. Mr. Jinnis protested.

        The Office of Judges determined that Mr. Jinnis failed to demonstrate that he was entitled
to any additional temporary total disability benefits. The Office of Judges noted that Dr.
Suleiman, who completed his reopening application, indicated that Mr. Jinnis had not suffered a
progression of his disability since being released to resume employment or being certified as
having reached his maximum degree of medical improvement. The Office of Judges determined
that Dr. Suleiman was in the best position to determine whether Mr. Jinnis had suffered an
aggravation or progression of the subject injury, because he was the physician who released Mr.
Jinnis to return work on November 5, 2012. The Office of Judges found that Dr. Suleiman failed
to causally connect Mr. Jinnis’s inability to work with the compensable injury. The Office of
Judges further determined that even though Dr. Suleiman diagnosed derangement the MRI
performed on September 12, 2012, was interpreted as showing no derangement. The Office of
Judges determined that the evidence did not indicate a causal connection between the initial
injury and Mr. Jinnis’s inability to work.

        We agree with the consistent decisions of the Office of Judges and Board of Review. Mr.
Jinnis has not presented sufficient evidence that he has suffered an aggravation or progression of
his compensable injury such that he would be entitled to additional total temporary disability
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benefits. Dr. Suleiman was in the best position to determine whether Mr. Jinnis had suffered an
aggravation or progression of the subject injury. He was the physician who released Mr. Jinnis to
return work on November 5, 2012. Furthermore, Dr. Suleiman failed to causally connect Mr.
Jinnis’s inability to work with the injury. The evidence in the record supports the notion that
internal derangement of the left knee was not related to the compensable injury. Because Mr.
Jinnis failed to show a prima facie case for reopening of his temporary total disability benefits, it
was proper for the Office of Judges and Board of Review to not grant him additional temporary
total disability benefits.

        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.

                                                                                          Affirmed.

ISSUED: February 10, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Robin J. Davis




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