                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              October 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TAMMY ROTELLA,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0668 (BOR Appeal No. 2048119)
                   (Claim No. 2011022206)

PAUL ENTERPRISES, LLC D/B/A TUDOR’S BISCUIT WORLD,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Tammy Rotella, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Paul Enterprises, LLC D/B/A
Tudor’s Biscuit World, by Lisa W. Hunter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 5, 2013, in which
the Board affirmed a January 18, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 3, 2011, decision
closing the claim for temporary total disability benefits. The Office of Judges also modified the
claims administrator’s February 2, 2011, decision insofar as it held the claim compensable for a
back contusion. The Office of Judges added right hip strain as a compensable condition of the
claim. The Office of Judges affirmed the claims administrator’s February 2, 2011, decision
insofar as it granted Ms. Rotella no 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.

       Ms. Rotella worked as a baker at Tudor’s Biscuit World for Paul Enterprises, LLC. On
December 20, 2010, Ms. Rotella tripped over a rubber mat and fell. She caught herself against a
metal sink. Ms. Rotella was treated at the emergency room at Trinity Health System for pain in
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her right hip and back. She was diagnosed with a contusion at the right rib. On February 2, 2011,
the claims administrator held the claim compensable for a contusion of the back. However, the
claims administrator granted Ms. Rotella no temporary total disability benefits because she did
not miss more than three days related to her compensable injury. Following this decision, Ms.
Rotella was evaluated by Trinity Workcare. The report from the evaluation restricted Ms. Rotella
to sedentary work until April 20, 2011. On March 3, 2011, the claims administrator closed the
claim for temporary total disability benefits. Ms. Rotella then came under the care of Nicholas G.
Sontereanos, M.D., for complaints of right hip pain. Dr. Sontereanos noted that he had repaired a
labral tear in Ms. Rotella’s right hip on March 9, 2005, but he determined that her pain did not
have a clear etiology. Christopher Martin, M.D., then evaluated Ms. Rotella. He diagnosed her
with a right side contusion and a right hip strain. Dr. Martin found no reason to include a lumbar
spine injury as a compensable diagnosis because Ms. Rotella had full range of motion and no
tenderness or pain in the lumbar spine. Dr. Martin found that she had reached her maximum
degree of medical improvement related to her compensable injury. He also determined that her
work restrictions were not related to the compensable injury. Instead, he identified several
multifactorial psychiatric and physical problems which had kept her from working. On January
18, 2013, the Office of Judges modified the claims administrator’s February 2, 2011, decision
and added right hip strain as a compensable condition of the claim. The Office of Judges
affirmed the February 2, 2011, and March 3, 2011, claims administrator’s decisions insofar as
the claims administrator held the claim compensable for a back contusion, granted Ms. Rotella
no temporary total disability benefits, and closed the claim for temporary total disability benefits.
The Board of Review affirmed the Order of the Office of Judges on June 5, 2013, leading Ms.
Rotella to appeal.

        The Office of Judges concluded that the diagnosis of right hip strain should be added as a
compensable condition of the claim. The Office of Judges noted that the initial treatment records
indicated that Ms. Rotella began to experience right hip pain from the date of the compensable
injury. It further determined that this diagnosis was supported by the evaluation of Dr. Martin.
The Office of Judges, however, determined that the diagnoses of lumbar strain, aggravation of
labral tear, and trochanteric bursitis were not compensable conditions of the claim. The Office of
Judges found that there was insufficient evidence to connect these additional conditions to the
compensable injury, particularly considering that Dr. Martin found that Ms. Rotella’s lumbar
range of motion was essentially normal. The Office of Judges also concluded that Ms. Rotella
was not entitled to any temporary total disability benefits related to her December 20, 2010,
injury. Although it found that Ms. Rotella did not work between December 20, 2010, and April
20, 2011, the Office of Judges determined that Ms. Rotella’s absence from work during that
period was not related to her compensable injury. In reaching this determination, the Office of
Judges relied on the report of Dr. Martin and the treatment notes of Dr. Sontereanos. The Board
of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Rotella has not demonstrated that she is entitled to any temporary total disability
benefits related to her compensable injury. It is unclear, based on the record, whether Ms.
Rotella’s inability to work was related to her compensable injury. The record shows that Ms.
Rotella suffered from a right hip strain and a contusion of the right side of her back during the
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December 20, 2010, injury. It does not show that her disability and need for temporary total
disability benefits related to either of these conditions. Dr. Martin and Dr. Sontereanos both
indicate that Ms. Rotella’s continuing pain is unrelated to her compensable injury. The Office of
Judges provided adequate reasons for relying on both opinions, and its decision was consistent
with the evidence in the record.

        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: October 7, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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