                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
NATHANIEL E. ELLIS,                                                                 May 21, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 18-0081 (BOR Appeal No. 2052174)
                    (Claim No. 2016027518)

SPARTAN MINING COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner, Nathaniel Ellis, by, his attorney, Reginald Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Spartan Mining Company, by Sean
Harter, its attorney, filed a timely response.

        The issues on appeal are temporary total disability benefits and medical treatment. On
January 4, 2017, the claims administrator closed Mr. Ellis’ claim for temporary total disability
benefits. On February 13, 2017, the claims administrator denied a request from Dr. McCleary for
a right knee MRI. The Office of Judges reversed both of the decisions in its August 3, 2017,
Order. The Order was reversed and vacated by the Board of Review on January 8, 2018. 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. Ellis, a utility man, was injured when he tripped while getting into a scoop and
twisted his right knee on April 30, 2016. He was treated in the emergency room Logan General
Hospital for right knee pain. He was diagnosed with a right knee sprain. On May 25, 2016, the
claim was held compensable for a right knee sprain.

        A June 3, 2016, right knee MRI revealed no evidence of internal derangement. All of the
ligaments, tendons, and menisci were intact. Robert McCleary, D.O., performed a right knee
arthroscopic fat pad debridement on July 21, 2016. The pre-operative diagnosis was sprain of the
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right knee. The post-operative diagnosis was right knee anterior friction fat pad syndrome. Mr.
Ellis underwent a functional capacity evaluation on September 28, 2016, which showed he was
able to work at a medium to heavy physical demand level and that he may have significant
difficulty or limitation if required to walk or bend over for prolonged periods. The evaluation
also showed right quadriceps weakness; mildly antalgic gait pattern; and decreased ability to
climb stairs, perform bent over walking as if in coal mines, and perform activities that required
him to bend his right knee. Work conditioning was recommended.

        Marsha Bailey, M.D., performed an independent medical evaluation on November 10,
2016. She noted that Mr. Ellis complained of mild pain, right knee instability, and the inability to
fully extend his right knee due to pain. He reported that the surgery resolved his original right
knee pain, improved his range of motion, and improved the frequency of his right knee giving
out. Mr. Ellis had been unable to return to his pre-injury work duties, but believed he would be
able to do so after he completed the work hardening. On examination, Mr. Ellis had no soft tissue
swelling or effusion of the knee. He was tender to palpation. Strength was symmetrical in both
knees. His right knee has 120 degrees of flexion and four degrees of extension. His left knee had
120 degrees of flexion and two degrees of extension. Dr. Bailey diagnosed resolved right knee
sprain and strain and opined that Mr. Ellis had reached maximum medical improvement.

       On November 18, 2016, Dr. McCleary restricted Mr. Ellis from working until December
19, 2016. The claims administrator suspended Mr. Ellis’s temporary total disability benefits on
December 1, 2016, based on the independent medical evaluation of Dr. Bailey. On December
18, 2016, Mr. Ellis was seen by Dr. McCleary for right knee pain over the medial aspect of the
knee. Dr. McCleary noted 120 degrees of knee flexion and extension, good muscle strength, and
tenderness of the medial femoral condyle secondary to the friction pad syndrome. In an attending
physician’s report dated December 28, 2016, Dr. McCleary opined that Mr. Ellis had reached
maximum medical improvement. He also opined that Mr. Ellis had been temporarily and totally
disabled from July 21, 2016, through December 17, 2016. The claims administrator closed the
claim for temporary total disability benefits on January 4, 2017.

        Mr. Ellis returned to work on January 11, 2017. The next day he was treated in the
emergency room at Logan Regional Medical Center for right knee and low back pain. Mr. Ellis’s
right knee was swollen and tender. The range of motion was limited due to pain. A right knee x-
ray showed mild osteoarthritis. He was diagnosed with back pain, knee effusion, and knee pain.
Mr. Ellis returned to see Dr. McCleary on January 18, 2017. Dr. McCleary noted diffuse
swelling over the patellar tendon. Mr. Ellis said he was working when he felt a pop in his knee
and fell to the ground. Dr. McCleary diagnosed right knee sprain; lumbar sprain; and sprain of
the right knee, unspecified ligament, subsequent encounter. Dr. McCleary recommended a repeat
MRI, intra-articular injections into the right knee, and took Mr. Ellis off work through March 18,
2017.

        The claims administrator denied Dr. McCleary’s request for a right knee MRI on
February 13, 2017. Mr. Ellis had the MRI on February 15, 2017. It showed no evidence of a
cruciate or collateral ligament tear and no meniscal injury. There was mild signal irregularity
near the quadriceps tendon insertion on the patella, which was stable from the previous study. No
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new abnormality was seen. On February 20, 2017, Dr. McCleary noted persistent pain in the
medial aspect of the knee as well as mild paraspinal lumbar spasm. He took Mr. Ellis off of work
through April 20, 2017.

        Mr. Ellis testified via deposition on May 16, 2017, that he worked underground on the
move crew putting structure in, moving belts, and cleaning for day shift. On the day he was
injured, he was working in forty-two inches of coal. He was getting in a scoop to move a piece of
the belt when he slipped and twisted his knee. After his surgery, the pain went right back to
where it was. He is unable to sit or walk if he has to bend his knee. He had been unable to return
to work because of his knee. Mr. Ellis had not sought treatment from Dr. McCleary since
February of 2017 because he could not pay for the visits.

       On May 31, 2017, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation at which time Mr. Ellis’s chief complaint was right knee pain. He told Dr. Mukkamala
he was unable to go on stairs due to the pain. On examination, Dr. Mukkamala noted normal
range of motion of the right knee. He also noted no deformity, crepitus, instability, or swelling in
the right knee. Dr. Mukkamala diagnosed sprained right knee, status post arthroscopic
debridement of the fat pad. He opined that Mr. Ellis had reached maximum medical
improvement and found no indication for a follow-up MRI, or any other medical treatment.

        The Office of Judges reversed the claims administrator’s suspension of temporary total
disability benefits in its August 3, 2017, Order and authorized the benefits through April 20,
2017, and thereafter as substantiated by proper medical evidence. It noted that the claim was
closed for temporary total disability benefits based on Dr. Bailey’s November 10, 2016,
evaluation in which she opined Mr. Ellis’s right knee complaints had resolved.
It determined that a preponderance of the evidence indicated the injury caused more than a knee
sprain. The Office of Judges further found that Dr. Bailey understated Mr. Ellis’s ongoing knee
problems. Dr. McCleary continued to treat Mr. Ellis after Dr. Bailey’s examination and after his
attempt to return to work.

         The Office of Judges also reversed the claims administrator’s February 13, 2017, decision
and granted authorization for the right knee MRI. The Office of Judges found that a
preponderance of the evidence indicated that the right knee MRI was reasonable medical
treatment for the work injury. It noted that physical therapy and surgery failed to improve Mr.
Ellis’s right knee symptoms and the MRI was needed due to the continued right knee complaints.
Therefore, it was reasonable for Dr. McCleary to request the repeat MRI to address Mr. Ellis’s
post-surgery symptoms. The Office of Judges did not find Dr. Mukkamala’s opinion to be a good
indicator regarding Mr. Ellis’s need for a repeat MRI.

        On January 8, 2018, the Board of Review reversed and vacated the Office of Judges’
August 3, 2017, Order. It did not agree with the reasoning of the Office of Judges. It determined
that Dr. Bailey found Mr. Ellis to be at maximum medical improvement on December 10, 2016,
and Dr. McCleary did on December 28, 2016. As Mr. Ellis returned to work on January 11,
2017, the claim administrator’s closure of the claim for temporary total disability benefits was
proper. Additionally, the Board of Review found that the preponderance of the evidence
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established that the repeat right knee MRI was not reasonable and necessary medical treatment
for the compensable injury.

       After review, we agree with the reasoning and conclusions of the Board of Review.
Having reached maximum medical improvement and having returned to work, Mr. Ellis was no
longer entitled to temporary total disability benefits. Additionally, Drs. Bailey and Mukkamala
both opined that Mr. Ellis needed no additional medical treatment. Therefore, the Board of
Review did not err when it found that the request for a second right knee MRI was not due to the
work 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: May 21, 2018

CONCURRED IN BY:
Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 


DISSENTING: 

Chief Justice Margaret L. Workman 





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