                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
AIR TEMP HEATING & COOLING, INC.,                                             OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0861 (BOR Appeal No. 2048150)
                   (Claim No. 2011042300)

DAVID HINZMAN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Air Temp Heating & Cooling, Inc., by Steven K. Wellman, its attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. David
Hinzman, by Reginald D. Henry and Rodney A. Skeens, his attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 26, 2013, in which
the Board affirmed a February 5, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s June 7, 2011, decision to
suspend medical benefits and temporary total disability benefits. The Office of Judges also
reversed the claims administrator’s August 16, 2012, decision to not add lumbar disc herniation
as a compensable condition. 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. Hinzman, an employee of Air Temp Heating & Cooling, Inc., was working on May
9, 2011, when he reached down to pick up a tool and injured his lower back. On May 10, 2011,
Mr. Hinzman reported to Raleigh General Hospital where he was diagnosed with a lumbar strain,
an injury of the trunk, overexertion, and strenuous movements. At the time of examination, Mr.
Hinzman complained of pain in his back shooting into his legs. An x-ray was performed, and it
was unremarkable. Mr. Hinzman was told he could return to work on May 16, 2011. Mr.
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Hinzman was also referred to Rajesh V. Patel, M.D., for treatment. Dr. Patel suggested physical
therapy for a total of six weeks. Dr. Patel advised Mr. Hinzman not to work until his follow-up
and MRI. Matt Nichols, one of Mr. Hinzman’s fellow employees asserted that Mr. Hinzman
returned to Air Temp Heating & Cooling to pick up his tools because he had months of side jobs
he needed to complete. The claims administrator suspended medical benefits on June 7, 2011,
because Mr. Hinzman’s recent activities were inconsistent with his alleged disability. Mr.
Hinzman protested.

        On February 6, 2012, Mr. Hinzman had an MRI of his lower back, which was interpreted
as showing a left asymmetric disc protrusion at L5-S1 encroaching on the left S1 nerve root.
Thereafter, Julian Chipley, D.C., submitted an updated diagnosis form that included lumbar
radiculitis and displacement of the lumbar disc without myelopathy. Mr. Hinzman then reported
to Paul Bachwitt, M.D., who conducted an independent medical examination. Dr. Bachwitt was
not provided any records for this examination and diagnosed Mr. Hinzman with a lumbar strain
which should have resolved by this point in time. Dr. Bachwitt stated that Mr. Hinzman had
reached his maximum degree of medical improvement. However, on June 8, 2012, Dr. Bachwitt
was apprised of the MRI that showed an L5-S1 disc bulge with possible nerve impingement. Dr.
Bachwitt opined in his addendum that, despite the MRI, Mr. Hinzman clinically did not have
radiculopathy. Dr. Bachwitt further asserted that he knew this because his testing showed that all
motor muscles and reflexes were normal. Dr. Bachwitt also found that the sitting straight leg test
indicated there was no pressure on the spinal cord or a nerve root. The claims administrator, on
August 16, 2012, denied adding lumbar disc bulge with radiculitis based upon Dr. Bachwitt’s
original independent medical examination and his corrective addendum.

        The Office of Judges reversed the August 16, 2012, decision of the claims administrator
that refused to add an L5-S1 disc bulge with radiculopathy as a compensable condition of the
claim. The Office of Judges based its decision on the report of Dr. Patel. Dr. Patel opined that the
disc bulge was directly attributable to Mr. Hinzman’s employment. The Office of Judges noted
that when Mr. Hinzman originally reported to the emergency room on May 10, 2011, the
emergency room noted pain radiating into his lower extremities, which is consistent with
radiculopathy. The Office of Judges also noted that Dr. Chipley, based upon his physical
examination, noted a disc problem with pain shooting into the legs. The Office of Judges
determined that the medical records were consistent with Mr. Hinzman’s complaints of
radiculopathy. The Office of Judges also found that Mr. Hinzman had no pre-existing back
symptomology. Finally, the Office of Judges noted that the claim was already approved for a
lumbar strain. The Office of Judges determined that Mr. Hinzman established that he suffered a
L5-S1 disc bulge with radiculopathy in the course of and resulting from his employment. The
Office of Judges reversed the claim administrator’s August 16, 2012, decision.

       The Office of Judges also reversed the claims administrator’s June 7, 2011, decision and
granted temporary total disability benefits from May 25, 2011, through January 8, 2012. The
Office of Judges further instructed the claims administrator to issue protestable decisions
regarding specific future treatment requests. The Office of Judges noted that the claims
administrator suspended benefits on June 7, 2011, because Mr. Hinzman’s recent activities were
inconsistent with his alleged disability. The Office of Judges determined that this was not a valid
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reason to suspend benefits because it was not sufficiently clear that Mr. Hinzman’s actions were
inconsistent with his disability. Dr. Bachwitt found Mr. Hinzman to be at his maximum degree of
medical improvement on two occasions before January 8, 2012. However, the Office of Judges
determined his report is not credible because he failed to diagnose the disc bulge at L5-S1 and
failed to take into consideration the impact the added diagnosis would have on Mr. Hinzman’s
degree of medical improvement. The Office of Judges determined that Mr. Nichols’s statement
that Mr. Hinzman returned to pick up tools for side jobs he needed to complete was not as
persuasive as Mr. Hinzman’s consistent testimony that he was injured and unable to work. The
Office of Judges also noted that Dr. Patel, Mr. Hinzman’s treating physician, never opined that
Mr. Hinzman could return to work. As a result the Office of Judges determined that the
suspension of temporary total disability benefits was inappropriate because there was no
evidence at the time that Mr. Hinzman had reached his maximum degree of medical
improvement, had been released to return to work, or had actually returned to work. The Office
of Judges noted that the evidence shows that the claim should be closed for temporary total
disability benefits as of January 8, 2012, because Mr. Hinzman’s testimony showed that he
returned to work at that time. The Office of Judges also ordered the claims administrator to issue
a protestable decision regarding authorization for the February 6, 2012, lumbar MRI and
physical therapy. The Board of Review adopted the findings of the Office of Judges and affirmed
its Order.

       The findings of the Office of Judges and conclusions of the Board of Review should be
affirmed. Mr. Hinzman has established that he suffers from a disc bulge at L5-S1 with
radiculopathy related to his May 9, 2011, injury. It was not in error for the Office of Judges and
Board of Review to conclude that Mr. Hinzman has established that he suffers from a disc bulge
at L5-S1 with radiculopathy related to his May 9, 2011, occupational injury.

        Mr. Hinzman has also established that the suspension of medical benefits and temporary
total disability benefits on June 7, 2011, was in error. The evidence of record does not support a
decision to suspend temporary total disability benefits on June 7, 2011. The report of Dr.
Bachwitt is not credible because he failed to acknowledge that Mr. Hinzman suffered more than
a lumbar strain related to his employment. Since the record established he also needs treatment
related to a disc bulge with radiculopathy, Dr. Bachwitt’s opinion is unreliable, and the Office of
Judges properly disregarded it. The record establishes that the petitioner was disabled from May
25, 2011, through January 8, 2012. On May 25, 2011, Dr. Patel stated that Mr. Hinzman could
not work. None of the three conditions to suspend temporary total disability benefits were met
until January 8, 2012, when Mr. Hinzman returned to work. Mr. Hinzman is also entitled to
medically related and reasonably required medical benefits during this period and thereafter as
supported by the evidence.

        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: December 2, 2014

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




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