                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

LARRY MCCLUNG,
Claimant Below, Petitioner                                                             FILED
                                                                                    November 1, 2019
vs.)   No. 18-1017 (BOR Appeal No. 2052970)                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                   (Claim No. 2017021772)                                           OF WEST VIRGINIA



CONSTELLIUM ROLLED PRODUCTS,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Larry McClung, by Counsel Edwin H. Pancake, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Constellium Rolled
Products, by Counsel Alyssa A. Sloan, filed a timely response.

         The issue on appeal is the closing of the claim for temporary total disability benefits. The
claims administrator closed the claim for temporary total disability benefits on June 28, 2017. The
Workers’ Compensation Office of Judges (“Office of Judges”), affirmed the claims administrator’s
decision on May 11, 2018. This appeal arises from the Board of Review’s Final Order dated
October 25, 2018, in which the Board of Review affirmed the Order of the Office of Judges. 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. McClung completed an application for benefits dated March 11, 2017, reporting that
he injured his low back when he took a step while carrying a spacer while at work. The physician’s
section of the application was completed by the staff at Jackson General Hospital when he was
diagnosed with a lumbar strain. The claims administrator held the claim compensable for lumbar
strain on April 12, 2017. An MRI dated March 23, 2017, revealed a diffuse annular disc bulge with
moderate facet osteoarthritis at L3-L4, L4-L5 and L5-S1. Mild bilateral neural narrowing was seen
at the same levels. Mr. McClung also had mild to moderate degenerative changes at the sacroiliac
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joint. He continued to seek treatment and physical therapy at Boone Memorial Hospital, where he
was discharged from physical therapy on April 25, 2017, for a lack of improvement. He was
referred for a neurological consultation.

        On April 27, 2017, Mr. McClung treated with Richard Knapp, M.D., for his continued low
back pain. Mr. McClung reported that his symptoms had increased since the time of his injury and
that he was having difficulty sitting and standing for long periods of time due to pain. Dr. Knapp
also noted that he completed four weeks of physical therapy without any improvement. Mr.
McClung was diagnosed with lumbar strain, and he was prescribed the medication Norco. Dr.
Knapp thought that he would benefit from a neurological consultation and assessment. On April
27, 2017, Dr. Knapp formally requested authorization for Mr. McClung to be referred to a
neurosurgeon and prescribed Norco.

        The claims administrator referred Mr. McClung to Prasadarao B. Mukkamala, M.D., for
an independent medical evaluation. In his report dated May 23, 2017, Dr. Mukkamala stated that
he reviewed past treatment notes and performed a physical examination. According to Dr.
Mukkamala, a straight leg test from the sitting position caused no pain to 90 degrees. However, a
straight leg raising test in the supine position did not cause pain through 70 degrees. Dr.
Mukkamala found Mr. McClung’s neurological evaluation to be unremarkable. Lumbar strain was
diagnosed. Dr. Mukkamala found him to be at maximum medical improvement with no further
treatment needed. Dr. Mukkamala advised that Mr. McClung continue his home exercise program.
Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), Dr. Mukkamala opined that Mr. McClung had 5% whole person impairment for
reduced lumbar range of motion from his compensable injury. The claims administrator suspended
Mr. McClung’s temporary total disability benefits on May 30, 2017.

        Mr. McClung returned to Dr. Knapp on May 30, 2017, for a follow-up evaluation. In his
office notes, Dr. Knapp noted that he saw “minimal improvement in his lower back pain despite
four weeks of physical therapy.” Mr. McClung reported greater low back pain on his left side with
intermittent radiating pain to his bilateral lower extremities. Dr. Knapp found reduced lumbar
range of motion during the examination and prescribed Norco, Neurontin, and a TENS unit. Dr.
Knapp also requested authorization for a referral to a neurologist and authorization for the
medications he prescribed.

       Additional office notes from Dr. Knapp on June 13, 2017, and June 27, 2017, indicate that
Mr. McClung continued to treat with Dr. Knapp for the same symptoms of lumbar pain and lower
extremity burning. Dr. Knapp noted that Dr. Mukkamala found Mr. McClung to be at his
maximum degree of medical improvement. However, Dr. Knapp wrote that “[f]urther evaluation
by neurologist could prove beneficial as to the etiology of the radiculopathy.”

        The claims administrator closed Mr. McClung’s claim for temporary total disability
benefits on June 28, 2017. On July 25, 2017, the request for authorization for a referral to a
neurologist/neurosurgeon was denied. The claims administrator based both decisions on Dr.
Mukkamala’s May 23, 2017, report. Mr. McClung protested the decisions of the claims
administrator.
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        In support of his protest, Mr. McClung submitted a transcript of his deposition taken on
October 5, 2017. He testified that he had not returned to work and had not been released to return
to work by Dr. Knapp. He also testified that he paid to see a neurosurgeon with Neurological
Associates at Charleston Area Medical Center. He reported that he was told by the neurologist that
he did not need surgery, and he was referred to a pain clinic for therapy. Mr. McClung testified
that he was still treating with Dr. Knapp, who was his primary treating physician with regards to
his low back injury.

        The claim was submitted for decision before the Office of Judges. On May 11, 2018, the
Office of Judges affirmed the claims administrator’s Order of June 28, 2017. The Office of Judges
determined that there is no medical evidence on record rebutting Dr. Mukkamala’s determination
that Mr. McClung had reached his maximum medical improvement. The Board of Review adopted
the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
October 25, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. McClung has failed to submit sufficient evidence to
establish that he has not met his maximum degree of medical improvement. Although he submitted
several reports from his treating physician, Dr. Knapp did not establish continued temporary
disability following the closing of the claim for benefits on June 28, 2017.

        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: November 1, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:
Justice Margaret L. Workman




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