                              STATE OF WEST VIRGINIA

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

vs.)   No. 16-0194 (BOR Appeal No. 2050755)
                    (Claim No. 2013016349)

B. E. AEROSPACE, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Annetta S. Russell, by Linda Garrett, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. B.E. Aerospace, Inc., by Katherine
Arritt, 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 the August 7, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 16, 2015,
decision denying the payment of additional temporary total disability benefits for the period from
July 27, 2013, through February 4, 2014. 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.

        Annetta S. Russell worked as a buffer. She was putting on oversized coveralls on
December 6, 2012, when she fell and injured her back. After litigation, her claim was ruled
compensable for the conditions of recessed disc at L4-L5 and radiculopathy in the L4-L5
distribution. Ms. Russell was paid temporary total disability benefits for the period from
December 7, 2012, through July 26, 2013. Ms. Russell’s request to reopen her claim for payment
of temporary total disability benefits for the period from July 27, 2013, to February 4, 2014, was
submitted on April 2, 2015, and denied by the claims administrator on April 16, 2015.


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        Ms. Russell has a history of lumbar spine problems dating back to at least 1997, when she
was diagnosed with bulging discs and degenerative disc disease. More recently, on October 1,
2012, she was diagnosed with low back pain and sciatica. On December 10, 2012, four days after
the fall at work, she was diagnosed with sciatica. Lumbar spine x-rays taken on December 18,
2012, revealed degenerative changes at the lower thoracic and lumbar spine from facet
osteoarthropathy from L3 down to S1 with subtle grade 1 spondylolisthesis of L3 on L4. These
were the same changes seen on a September 26, 2012, lumbar spine x-ray.

       Ms. Russell was referred to David Weinsweig, M.D., to explore her surgical options after
conservative treatment failed to provide relief of her symptoms. On April 5, 2013, Dr.
Weinsweig diagnosed spondylolisthesis and lumbar stenosis. He opined that Ms. Russell
suffered from pain temporally related to the December 6, 2012, fall. Her chronic back pain was
exacerbated by the fall. Dr. Weinsweig suggested Ms. Russell continue with conservative
treatment.

        Jeff Rodebaugh, M.D., is Ms. Russell’s family physician. He treated Ms. Russell on
September 27, 2013. Unspecified backache, unspecified thoracic or lumbosacral neuritis or
radiculitis, and other chronic pain were among the diagnoses for which Dr. Rodebaugh was
treating Ms. Russell. He diagnosed chronic back pain with L4-L5 nerve impingement and
radiculopathy. He noted he was giving Ms. Russell a work excuse to be off work for the next two
months as there was no light duty work available. On December 3, 2013, Dr. Rodebaugh referred
Ms. Russell back to Dr. Weinsweig. Dr. Rodebaugh’s diagnoses remained chronic back pain
with L4-L5 impingement and radiculopathy. He provided Ms. Russell with a note stating she was
going to be under his care from December 3, 2013, to February 4, 2014. He did not specify that
Ms. Russell was unable to work during this time.

        Kenneth Fortgang, M.D., performed an Age of Injury Analysis and MRI comparison on
December 31, 2013. In his opinion, there were disc abnormalities as well as spinal stenosis noted
in a July 7, 2007, MRI. The spinal stenosis was chronic and not due to the injury. The disease
seen on the July 1, 2007, MRI had progressed as one would expect. There were no specific acute
findings attributable to the December 12, 2012, injury. Marsha Bailey, M.D., performed a
medical records review on January 8, 2014. In her opinion, Ms. Russell’s ongoing back
complaints were solely the result of her progressive degenerative spine condition.

       Dr. Weinsweig performed bilateral microdiscectomies at L3-L4 and L4-L5 and a fusion
at L3-L4 on May 22, 2014. The pre-operative and post-operative diagnoses were lumbar stenosis
with neurogenic claudication and spondylolisthesis. On July 1, 2014, Dr. Weinsweig updated his
diagnosis history to include congenital spondylolisthesis, lumbago, lumbosacral spondylosis
without myelopathy, spinal stenosis with lumbar neurogenic claudication, spinal stenosis of the
lumbar region, and thoracic and lumbosacral neuritis/radiculitis.

       Prasadarao Mukkamala, M.D., performed a medical records review on July 8, 2015. He
diagnosed chronic back pain due to degenerative spondyloarthropathy. In his opinion, Ms.
Russell was not temporarily totally disabled from July 27, 2013, to February 4, 2014.

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        Ms. Russell asserts that she is entitled to temporary total disability benefits for the period
from July 27, 2013, to February, 4, 2014.1 Her request for these benefits was denied by the
claims administrator on April 16, 2015, because the medical documentation failed to establish
she was temporarily and totally disabled during that period of time. The Office of Judges
affirmed the denial of benefits in its August 7, 2015, Order. The Office of Judges found that the
compensable condition in the claim was a recessed disc at L4-L5 with radiculopathy in the L4­
L5 distribution. It reviewed the medical evidence and found that Dr. Rodebaugh did not state Ms.
Russell needed to be off of work due to the compensable conditions. Additionally, the surgery
performed by Dr. Weinsweig was for the non-compensable conditions of lumbar stenosis with
neurogenic claudication and spondylolisthesis. The Office of Judges determined that Ms. Russell
had not established that she was entitled to temporary total disability benefits due to her
compensable injury during the period requested.

        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 the conclusions of the Board of Review. Dr. Rodebaugh stated Ms.
Russell was under his care and opined she needed to be off work as no light duty work was
available. However, that alone is not evidence of Ms. Russell’s continued temporary total
disability. Additionally, no medical evidence was submitted showing the treatment Ms. Russell
received after July 26, 2013, and/or the surgery performed by Dr. Weinsweig on May 22, 2014,
were needed for the compensable diagnoses of recessed disc at L4-L5 and radiculopathy in the
L4-L5 distribution. Ms. Russell failed to submit medical evidence that she remained temporarily
and totally disabled after July 26, 2013, due to her work injury. Therefore, her request for the
payment of additional temporary total disability benefits was properly denied.

        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


1
  Ms. Russell requested additional periods of temporary total disability benefits during the course of her appeal.
However, the Office of Judges did not consider those requests as they were not the subject of the appeal.
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