                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
THOMAS L. COPING,                                                                 March 3, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0191 (BOR Appeal No. 2050694)
                   (Claim No. 2010123172)

ELEMENTIS SPECIALTIES F/K/A RH,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Thomas L. Coping, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Elementis Specialties F/K/A
RH, by James W. Heslep, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in
which the Board affirmed a July 16, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 29, 2014,
decision which denied a request 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 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. Coping, a dispersion operator, injured his back while pulling open a rollup door on
February 6, 2010. The claim was held compensable for thoracic and cervical strains on February
24, 2010. In two separate Orders, temporary total disability benefits were granted from February
7, 2010, through February 14, 2010, and from February 16, 2010, through June 7, 2010. In a
January 24, 2011, letter, Lester Labus, M.D., stated that he saw Mr. Coping that day for a return
to work evaluation. At that time, Mr. Coping had no pain, his exam was normal, and he had good

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motion and strength in his back. Dr. Labus released him to return to full duty work with no
restrictions on February 1, 2011.

        Marsha Bailey, M.D., performed an independent medical evaluation in which she
diagnosed chronic cervical, thoracic, and lumbar complaints without objective evidence of injury
or true radiculopathy. She concluded that Mr. Coping’s lower extremity complaints were not
consistent with true radiculopathy. His most recent MRI was normal. His upper extremity
complaints were also found to be unsupported by objective medical evidence. Dr. Bailey opined
that Mr. Coping needed no further treatment for the compensable injury and that he had reached
maximum medical improvement.

       On October 9, 2012, the Office of Judges affirmed a claims administrator’s decision
denying a request for temporary total disability benefits. The Office of Judges concluded in that
case that Mr. Coping suffered an intervening injury on September 20, 2011, and his current
issues were not related to the compensable injury. The Order was affirmed by the Board of
Review and this Court. See Coping v. Elementis Specialties F/K/A RH, No. 13-0442 (Aug 13,
2014) (memorandum decision).

        In a claim reopening application dated July 24, 2014, Mr. Coping requested temporary
total disability benefits due to an aggravation and/or progression of his compensable injury. The
physician’s section was signed by Mark Calfee, D.C., and listed diagnoses of cervical and
thoracic sprains/strains. He noted ongoing neck and upper dorsal pain, radiation into the bilateral
extremities, and associated paresthesia. Dr. Calfee stated that there had been no aggravation or
progression of Mr. Coping’s disability since he was found to be at maximum medical
improvement and released to resume employment. Mr. Coping’s condition was virtually
unchanged. The temporary total disability period was listed as ongoing to December 31, 2014.

        The claims administrator denied Mr. Coping’s request for temporary total disability
benefits on August 29, 2014. The Office of Judges affirmed the decision in its July 16, 2015,
Order. It found that the claim was held compensable for thoracic and cervical strain. Mr. Coping
was found to be at maximum medical improvement by Dr. Bailey on February 24, 2014. The
Office of Judges noted that Mr. Coping has previously applied for temporary total disability
benefits and his request was eventually denied by this Court. It was determined at that time that
he suffered an intervening injury on September 20, 2011, and that his current issues were related
to that injury, not the compensable one. In the instant case, the Office of Judges found that Dr.
Calfee stated on the reopening application that Mr. Coping had not suffered an aggravation or
progression of his compensable injury since he was found to be at maximum medical
improvement and released to return to work. Therefore, the Office of Judges concluded that he
failed to meet his burden of proof to show that he was entitled to temporary total disability
benefits for the requested time period. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on February 3, 2016

       After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. In order to reopen a claim for temporary total disability benefits, a claimant
must show that they sustained an aggravation or progression of their compensable injury. West
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Virginia Code § 23-5-2 (2005) and West Virginia Code § 23-5-3 (2009). Mr. Coping has not
presented sufficient evidence to show an aggravation or progression of his condition. Dr. Calfee,
who signed the reopening application, stated on the application that his condition was unchanged
and he had suffered no aggravation or progression of his compensable injury.

        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: March 3, 2017

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




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