                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TIM A. MONEYPENNY,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0879 (BOR Appeal No. 2049188)
                   (Claim No. 2012023440)

SUMMIT ENVIRONMENTAL SERVICES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Tim A. Moneypenny, by William B. Richardson Jr., his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated August 6, 2014, in
which the Board affirmed a January 14, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s March 4, 2013,
decision to deny the request for temporary total disability benefits from January 14, 2013,
through February 28, 2013. 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. Moneypenny, a laborer and truck driver for Summit Environmental Services, LLC,
was at work on January 12, 2012, when one of his coworkers became anxious and panicked
inside a large machine. Mr. Moneypenny helped the coworker out of the door and felt a pulling
sensation in his abdomen. On January 19, 2012, Mr. Moneypenny was still experiencing pain so
he saw Tom Herrmann, M.D., for an evaluation. Dr. Herrmann diagnosed an umbilical hernia
and recommended surgery. He opined that Mr. Moneypenny would need to be off work around
four weeks. Thereafter, on January 31, 2012, the claims administrator held the claim
compensable for an umbilical hernia.
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       On February 22, 2012, Dr. Herrmann issued his report. Dr. Hermann stated that a CAT
scan and surgical evaluation showed a right inguinal hernia in addition to the compensable
umbilical hernia. Mr. Moneypenny had that hernia fixed with a surgical operation. On April 3,
2012, Dr. Herrmann authored a second report following the surgical repair of both hernias. Dr.
Hermann placed Mr. Moneypenny on sedentary work restrictions. Sushil Sethi, M.D., then
evaluated Mr. Moneypenny and issued a report of assessment on May 8, 2012. Dr. Sethi’s
physical examination revealed no inflammatory changes or neuromuscular deficits. Dr. Sethi
opined that Mr. Moneypenny had reached his maximum degree of medical improvement and
could return to his normal employment without restrictions. Mr. Moneypenny was found to have
2% whole person impairment related to the compensable injury.

         On May 1, 2012, Mr. Moneypenny’s vocational counselor, Howard Feick, stated that he
could no longer cover the light duty restrictions. A job was found at SW Resources that would
accommodate light duty and Mr. Moneypenny was instructed to report there. Mr. Moneypenny
was granted a 2% permanent partial disability award on May 8, 2012, by the claims
administrator based upon the report of Dr. Sethi. Sometime in June of 2012, Mr. Moneypenny
was seen by Dr. Herrmann for an evaluation. Mr. Moneypenny complained of pain from his right
inguinal area to his right testicle. Dr. Herrmann recommended referral to a pain clinic for shots
for ilioinguinal nerve entrapment. Dr. Herrmann indicated that he had not reached his maximum
dgree of medical improvement.

        A report from to Anil Patel, M.D., at the Pain Management Center was made available on
June 12, 2012. Dr. Patel’s impression was umbilical hernia. Dr. Patel administered a right
ilioinguinal/genitofemoral nerve block. Dr. Patel recommended three more injections over a
three month period. On July 2, 2012, a report from Dr. Herrmann stated that Mr. Moneypenny
was complaining of another knot above the umbilicus. He indicated that he first noticed the knot
approximately two weeks ago while was leaning over a table at work. Physical examination
revealed a tender prominence just above the umbilicus. The assessment was right inguinal hernia
with complicating ilioinguinal entrapment and umbilical hernia with complicating periumbilical
hernia. Mr. Moneypenny was referred to Adam Kaplan, M.D., for evaluation.

       In early July of 2012, Mr. Moneypenny went to visit his nephew at the employer’s work
site. Mr. Moneypenny was called into the office by a representative of Summit Environmental
Services, LLC, to discuss the fact that he was on the job site without authorization. At that time,
the representative accused Mr. Moneypenny of being drunk. Mr. Moneypenny insisted that he
only had one beer before going to visit his nephew at the work site. The representative also
questioned the way Mr. Moneypenny was dressed on the day he visited the job site. He further
accused Mr. Moneypenny of masquerading as a supervisor and terminated his employment.

        On August 29, 2012, a report stated that Dr. Herrmann opined that Mr. Moneypenny was
not at his maximum degree of medical improvement. For the time between September and
November of 2012, Mr. Moneypenny followed-up with Dr. Herrmann. The assessment was
recurrent periumbilical hernia, status post repair, and right inguinal hernia repair with right
ilioinguinal nerve entrapment syndrome. It was noted that Mr. Moneypenny had been scheduled
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for surgical repair for a recurrent periumbilical hernia. Dr. Herrmann indicated that Mr.
Moneypenny was essentially at his maximum degree of medical improvement unless Dr. Kaplan
recommended further intervention for his ilioinguinal entrapment syndrome. On November 26,
2012, the claims administrator authorized an epigastric hernia repair. On January 14, 2013, a
report from Dr. Herrmann documenting the post-surgical follow-up was made available. It
reported continued right ilioinguinal nerve pain.

         On March 4, 2013, the claims administrator denied a request from Dr. Herrmann for the
payment of temporary total disability benefits from January 14, 2013, through February 28,
2013. The decision noted that Mr. Moneypenny had been terminated from his employment on
July 3, 2012, for a violation of company policy. The decision stated that while Mr. Moneypenny
may be entitled to medical benefits, he was no longer entitled to wage replacement benefits due
to his termination. In his March 11, 2013, report Dr. Herrmann opined that Mr. Moneypenny had
reached his maximum degree of medical improvement in regard to the recurrent periumbilical
hernia. Mr. Moneypenny also had ilioinguinal nerve entrapment with associated pain. In regard
to that condition, Dr. Herrmann stated that a finding of maximum degree of medcial
improvement was dependent upon workers’ compensation's authorization of additional pain
shots.

        On April 5, 2013, the claims administrator approved Dr. Herrmann’s request for a referral
to Dr. Patel for three pain injections. On April 30, 2013, the claims administrator approved a
request for referral to Pars Brain & Spine Institute and three series of injections. On September
12, 2013, the claims administrator denied requests for right inguinal block, follow-up visits, and
the addition of mononeuritis of the lower limb as well as sacroiliitis, thoracic, and lumbosacral
neuritis as compensable conditions in the claim. An April 8, 2013, report from Dr. Herrmann
stated that the surgical repair was stable and there were no recurrent symptoms. Dr. Herrmann
also noted he had right ilioinguinal nerve entrapment syndrome for which he was scheduled to
receive pain shots. Dr. Herrmann indicated that he would see Mr. Moneypenny back in six weeks
at which time he would be at his maximum degree of medical improvement. Another report on
May 20, 2013, from Dr. Herrmann indicated that he still had symptoms of ilioinguinal nerve
entrapment and was scheduled to receive injections.

       On August 19, 2013, Dr. Herrmann submitted another report. Mr. Moneypenny initially
received considerable relief following two shots, but the pain eventually returned. The pain clinic
sought authorization for a nerve block. Dr. Herrmann noted that a finding of maximum degree of
medical improvement could not be made until after the nerve block was performed.

        On October 29, 2013, Mr. Moneypenny signed an affidavit stating that on January 12,
2012, he was required to pull a co-worker out of an opening in a coal separator machine. While
assisting the co-worker, Mr. Moneypenny felt a pulling sensation in his right groin. Within a day
or two, Mr. Moneypenny developed swelling around his belly button. On February 24, 2012, Mr.
Moneypenny underwent surgery to repair an umbilical and inguinal hernia. Approximately six
weeks later, Mr. Moneypenny was released for light duty work. Mr. Moneypenny performed
office work for his pre-injury employer for four or five weeks and then took a job with SW
Resources cutting material for rugs. Mr. Moneypenny worked at SW Resources for several
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months before returning to the pre-injury employer to perform office work. About two weeks
after returning to the preinjury employer, Mr. Moneypenny received a pain injection and was
taken off work. While off work, Mr. Moneypenny went to the employer’s job site to speak to his
nephew. The next day, Mr. Moneypenny was called to the employer’s office and terminated for
visiting his nephew. Thereafter, Mr. Moneypenny continued receiving medical treatment for his
hernias. In November of 2012 the claims administrator approved corrective surgery in the claim,
and in December of 2012, he underwent a second surgical hernia repair. Mr. Moneypenny
continued to follow-up with Dr. Herrmann but had not yet been found to be at maximum degree
of medical improvement.

        The Office of Judges found Mr. Moneypenny was entitled to temporary total disability
benefits from January 14, 2013, through February 28, 2013. The Office of Judges noted that the
evidence showed that Mr. Moneypenny suffered an umbilical and inguinal hernia as a result of a
compensable injury on January 12, 2012. The Office of Judges also noted that the umbilical and
inguinal hernia was held compensable. The Office of Judges noted that Mr. Moneypenny
underwent corrective surgery to repair the hernia and was released to light duty work
approximately six weeks after his surgery. The Office of Judges further found the evidence
indicated that Mr. Moneypenny suffered a recurrence of the umbilical hernia after returning to
modified work. The surgery was ultimately approved by Order dated November 26, 2012. The
corrective surgery was performed on December 27, 2012. Thereafter, Mr. Moneypenny was seen
by Dr. Herrmann for post-surgical follow-up on January 14, 2013, at which time Dr. Herrmann
certified Mr. Moneypenny as temporarily and totally disabled from January 14, 2013, through
February 28, 2013. The Office of Judges determined the weight of the evidence established that
Dr. Herrmann’s request to reopen this claim for temporary total disability benefits from January
14, 2013, through February 28, 2013, was to allow for post-surgical recovery following the
surgical procedure. The Office of Judges found that Mr. Moneypenny’s termination from
employment had no impact on his eligibility for temporary total disability benefits. The Board of
Review adopted the findings of the Office of Judges and affirmed its Order. The Board of
Review also found that Mr. Moneypenny was fired in July of 2012.

       We agree with the Office of Judges and Board of Review. It was apparent that Mr.
Moneypenny suffered a compensable injury and required surgery because of it. It was also
apparent that his condition progressed and he required another surgery to repair the progression.
While the decision of the Office of Judges and Board of Review was favorable to Mr.
Moneypenny, he appealed it because he believed his temporary total disability benefits should
have started directly after his surgery, which occurred on December 27, 2012, and not on January
14, 2013, when his doctor certified that he was temporarily totally disabled. Mr. Moneypenny
argued that his benefits were unjustly cut off by the Board of Review because it held that he
could not reopen his claim after he had been terminated. The Board of Review made no such
finding. The Board of Review stated that was that he was fired in July of 2012 and the Office of
Judges was correct in its decision based upon the evidence submitted.

        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

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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: February 4, 2016

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

DISSENTING:
Chief Justice Menis E. Ketchum




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