                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

RANDY CLARK,
                                                                                         FILED
Claimant Below, Petitioner                                                              July 31, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs.)   No. 19-0533 (BOR Appeal No. 2053712)                                           OF WEST VIRGINIA
                   (Claim No. 2017020926)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Randy Clark, by Counsel J. Thomas Greene Jr., appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Murray American
Energy, Inc., by Counsel Denise D. Pentino and Aimee M. Stern, filed a timely response.

        The issue on appeal is temporary total disability benefits. The claims administrator closed
the claim for temporary total disability benefits on January 26, 2018. The Office of Judges affirmed
the decision in its November 20, 2018, Order. The Order was affirmed by the Board of Review on
May 8, 2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Clark, a coal miner, was injured in the course of his employment on February 22, 2017.
Treatment notes from Wheeling Hospital Emergency Department that day indicate Mr. Clark was
driving when a rock fell onto his right wrist and left knee. He was diagnosed with left knee and
right hand contusions. A February 24, 2017, treatment note by C. Clark Milton, D.O., indicates
right hand x-rays showed no fractures. A knee x-ray showed possible fluid. It was noted that Mr.
Clark was going to undergo knee surgery. Examination revealed swelling on the left thigh and
right hand thenar eminence. Dr. Milton diagnosed right thumb contusion, particularly to the thenar
eminence and distal femur soft tissue contusion. Dr. Milton referred Mr. Clark for an MRI to assess
the distal femur and opined that he was unable to return to work.
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       A left femur MRI was performed on February 28, 2017, and showed contusion of the vastus
medialis muscle near the knee as well as a joint effusion at the knee. The claim was held
compensable for left knee contusion and right hand contusion on March 10, 2017. Mr. Clark was
granted temporary total disability benefits from February 23, 2017, through March 17, 2017. On
March 15, 2017, a right finger MRI showed no fractures and some soft tissue swelling. It was
noted that the findings were compatible with contusion and intramuscular tears.

        Mr. Clark sought treatment from Ross Tennant, F.N.P., on March 17, 2017. The note
indicates Mr. Clark reported right hand pain and decreased range of motion as well as pain in the
medial left knee with instability. Mr. Tennant diagnosed right hand and left thigh contusions and
referred Mr. Clark to a hand surgeon. An MRI of the left knee was requested to assess possible
internal derangement. Mr. Tennant stated that Mr. Clark was unable to return to work.

       A left knee MRI was performed on April 2, 2017, and showed a medial meniscus tear with
moderate joint effusion. On April 4, 2017, Mr. Clark was treated at Plastic Surgery, Inc., for right
hand pain. Mr. Clark was diagnosed with contusion of the dorsal interosseous muscle in the thumb
and index finger. Physical therapy was recommended. That same day, Mr. Clark returned to Mr.
Tennant, who noted that Mr. Clark was undergoing left knee physical therapy. He reported
continued left knee pain and instability. Mr. Tennant diagnosed right hand and left thigh
contusions. It was noted that Mr. Clark was referred to orthopedics and remained unable to work.

       An April 10, 2017, treatment note by Hector Marcano, M.D., indicates Mr. Clark was seen
for hand/occupational therapy evaluation for a right hand contusion. He had not yet returned to
work and reported difficulty with activities of daily living. The assessment was right hand pain
and mobility issues as well as right thumb pain. Mr. Clark was seen by Michael Rytel, M.D., on
April 24, 2017, for left knee symptoms. Dr. Rytel diagnosed left knee medial meniscus tear due to
a work-related injury and recommended surgery.

       A right hand MRI showed improving soft tissue swelling with possible mild tenosynovitis
on May 19, 2017. On June 1, 2017, Kia Washington, M.D., evaluated Mr. Clark and recommended
an EMG to assess right wrist numbness and tingling. She also recommended an MRI. Dr.
Washington opined that the etiology of the symptoms was unclear but that they clearly related to
the work injury. A right wrist x-ray showed no acute abnormalities.

        Mr. Clark underwent left knee surgery on June 7, 2017. The post-operative diagnosis was
medial meniscus tear with chondrosis of the patella. Mr. Clark was evaluated at Hudson Premier
Physical Therapy and Fitness Center on June 13, 2017, for left knee meniscus derangement, pain,
and stiffness. He was to undergo therapy three times a week for four weeks. A right arm EMG was
performed on June 30, 2017, and showed normal results with no evidence of neuropathy.

        David Soulsby, M.D., performed an independent medical evaluation on July 17, 2017, in
which he determined that Mr. Clark had not yet reached maximum medical improvement for either
his right hand or left knee. Dr. Soulsby assessed right hand contusion with crush injury, left
quadriceps contusion, torn left knee medial meniscus, patella chondromalacia, and post-operative
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left knee incision infection. Dr. Soulsby recommended stress imaging of the hand joints to check
for instability. If no instability was found, he recommended immobilization, medication, and,
eventually, aggressive physical therapy. Dr. Soulsby opined that bone contusions were difficult to
manage. Regarding the left knee, he recommended continued wound treatment. He stated that Mr.
Clark was capable of sedentary work.

        Physical therapy treatment notes indicate Mr. Clark was treated for right wrist and hand
pain as well as complex regional pain syndrome on September 1, 2017. Skilled therapy was
recommended, and his prognosis was good. On September 7, 2017, Dr. Rytel noted that Mr. Clark
reported continued left knee pain following surgery. The impression was left medial meniscus tear,
left knee pain, and complications of surgery. Dr. Rytel stated that the infection at the surgical site
had persisted for too long to be a normal reaction to sutures. He recommended an arthroscopy to
ensure that there was nothing interarticular occurring as well as debridement of the portal sites.
Mr. Clark underwent left knee debridement of the portal sites and a partial medial meniscectomy
on October 4, 2017. The post-operative diagnoses were left knee suture reaction and medial
meniscus tear.

        Mr. Clark returned to Dr. Rytel on November 16, 2017. Dr. Rytel found that Mr. Clark’s
portals were healing well, and he had a normal gait. The diagnoses were complications of prior
procedure and left knee medial meniscus tear. It was noted that Mr. Clark was doing much better
and was released to return to light duty. The claims administrator approved continued physical
therapy for six weeks on December 13, 2017.

       Dr. Soulsby performed an independent medical evaluation on December 14, 2017, in which
he found that Mr. Clark had reached maximum medical improvement. Dr. Soulsby opined that he
would benefit from continued physical therapy to improve strength. He also recommended
continued use of a right wrist compression glove. Dr. Soulsby found no left knee impairment and
12% right hand impairment.

        In a December 21, 2017, letter, Dr. Washington stated that Mr. Clark was released to return
to medium duty work. On January 11, 2018, Dr. Rytel noted that Mr. Clark was walking with a
normal gait. He had no fluid in the knee and the portals were completed healed with no sign of
infection. Dr. Rytel stated that Mr. Clark had finished physical therapy and could return to full
duty work.

       On January 12, 2018, Mr. Tennant stated that Mr. Clark was able to perform full flexion
and extension of his right thumb and fingers as well as his left knee. The impression was right
hand contusion and left medial meniscus tear. Mr. Tennant released Mr. Clark to light duty work
but recommended that he continue with hand therapy. The claims administrator closed the claim
for temporary total disability benefits on January 26, 2018.

        A March 9, 2018, treatment note by Mr. Tennant indicates Mr. Clark reported continued
right hand improvement. It was noted that he was not working. Mr. Tennant stated that Mr. Clark
could likely return to his regular work after his appointment with Dr. Washington on April 6, 2018.
Mr. Tennant completed a disability status form stating Mr. Clark was able to return to work with
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restrictions. On March 27, 2018, Mr. Clark reported that he was released to return to full duty from
his plastic surgeon. His right hand symptoms were still improving. It was noted that Mr. Clark was
not currently working but that he was capable of performing all of his previous duties. Mr. Tennant
stated that Mr. Clark was able to work without restrictions.

       Mr. Clark testified in a June 27, 2018, deposition that his temporary total disability benefits
were suspended on December 19, 2017, but he had not yet returned to work since he was still
under the care of physicians who had not yet released him. He returned to work on March 28,
2018. Mr. Clark stated that he was still having difficulties with his right hand and left knee.

        In its November 20, 2018, Order, the Office of Judges affirmed the claims administrator’s
closure of the claim for temporary total disability benefits. It determined that Mr. Clark was found
to be at maximum medical improvement on December 14, 2017, by Dr. Soulsby. Following that
evaluation, he received no substantial treatment. Both Drs. Soulsby and Rytel found that Mr. Clark
had reached maximum medical improvement. Further, Dr. Washington determined on December
21, 2017, that he could return to medium duty work, and Mr. Clark testified that he had seen no
improvement in his condition since he was evaluated by Dr. Soulsby on December 14, 2017. Based
on a preponderance of the evidence, the Office of Judges concluded that the claim was properly
closed for temporary total disability benefits on January 26, 2018. The Board of Review adopted
the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May
8, 2019.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Drs. Soulsby, Rytel, and Washington, as well as Mr. Tennant,
all determined that Mr. Clark could return to work. Pursuant to West Virginia Code § 23-4-7a
(2019), temporary total disability benefits will cease when the claimant has reached maximum
medical improvement, has been released to return to work, or has returned to work, whichever
occurs first. Since Mr. Clark was released to return to work and found to be at maximum medical
improvement, the claim was properly closed for 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.




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ISSUED: July 31, 2020


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




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