                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 August 24, 2017
MARGARET A. BAYS,                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-1018 (BOR Appeal No. 2051239)
                   (Claim No. 2015008238)

RALEIGH COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Margaret A. Bays, by Reginald Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The Raleigh County Board of
Education, by Lisa Warner Hunter, its attorney, filed a timely response.

       The issue presented in the instant appeal is the closure of Ms. Bays’s claim for workers’
compensation benefits on a temporary total disability basis. On August 31, 2015, the claims
administrator closed Ms. Bays’s claim on a temporary total disability basis. The Office of Judges
affirmed the claims administrator’s decision on April 15, 2016. This appeal arises from the
Board of Review’s Final Order dated September 28, 2016, in which the Board affirmed the
Order of the Workers’ Compensation Office of Judges. 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. Bays fractured her left hip when she fell on September 16, 2014, during the course of
her employment with the Raleigh County Board of Education. She was immediately treated in
the emergency department of Raleigh General Hospital, and the left hip fracture was surgically
repaired by Matthew Nelson, M.D., on September 17, 2014. On December 24, 2014, Ms. Bays’s
claim for workers’ compensation benefits was held compensable for a closed fracture of the
                                                1
intertrochanteric section of the neck of the left femur and a closed fracture of the neck of the left
femur. Additionally, temporary total disability benefits were granted from September 17, 2014,
through January 22, 2015. On June 5, 2015, additional temporary total disability benefits were
authorized from April 7, 2015, through August 12, 2015.

         On June 25, 2015, Ms. Bays sought treatment with S. Brett Whitfield, M.D., amid
complaints of ongoing left hip pain. She was diagnosed with avascular necrosis of the left hip
and symptomatic retained hardware in the left hip. A total left hip arthroplasty was
recommended. Additionally, Dr. Whitfield opined that the initial treatment rendered by Dr.
Nelson was appropriate. He further indicated that he is not an in-network healthcare provider for
the claims administrator in the instant claim. However, Dr. Whitfield subsequently performed a
total left hip arthroplasty.

        On July 31, 2015, the claims administrator declared an overpayment of temporary total
disability benefits from June 23, 2015, through July 31, 2015, based upon its determination that
Ms. Bays’s employment contract did not cover those dates. In a separate decision dated July 31,
2015, the claims administrator suspended Ms. Bays’s temporary total disability benefits based
upon its finding that she failed to provide evidence that she continued to be temporarily totally
disabled. The claims administrator closed her claim on a temporary total disability basis on
August 31, 2015.

        On September 29, 2015, Dr. Whitfield authored a letter indicating that Ms. Bays’s
development of avascular necrosis of the left hip arose from a disruption in blood flow to the
femoral head, which is a recognized potential complication associated with injuries similar to
that sustained by Ms. Bays. Dr. Whitfield also stated that Ms. Bays remains temporarily totally
disabled.

        On March 8, 2016, Tanya Roberts, the claims administrator’s case manager for the
instant claim, authored an affidavit. Ms. Roberts stated that Dr. Whitfield is not an in-network
healthcare provider for the claims administrator. She further stated that a request for pre-approval
of treatment with Dr. Whitfield was never submitted. Finally, Ms. Roberts stated that she issued
an Order closing the claim on a temporary total disability basis because, as an out-of-network
provider, Dr. Whitfield cannot certify a period of temporary total disability.

        In its Order affirming the August 31, 2015, claims administrator’s decision, the Office of
Judges held that Ms. Bays is not entitled to additional temporary total disability benefits pursuant
to the provisions of West Virginia Code of State Rules § 85-21-9.5 (2005). The Board of Review
affirmed the reasoning and conclusions of the Office of Judges in its decision dated September
28, 2016.

       At the outset, the Office of Judges found that the evidence of record demonstrates that
Ms. Bays was temporarily totally disabled as a result of the compensable injury on August 31,
2015, which is the date that her claim was closed on a temporary total disability basis.
Specifically, the Office of Judges found that Dr. Whitfield explained that Ms. Bays developed
avascular necrosis as a result of the compensable injury. The Office of Judges further found that
                                                 2
Ms. Bays underwent a left hip total arthroplasty on August 10, 2015, for the treatment of the
avascular necrosis, from which she was continuing to recover as of the date of the closure of the
claim. However, the Office of Judges also found that Dr. Whitfield is not an in-network
healthcare provider for the claims administrator. The Office of Judges then looked to West
Virginia Code of State Rules § 85-21-9.5, which provides that “[t]emporary total disability must
be certified by a provider within the approved managed health care plan, unless the opt-out
provisions of this rule have been satisfied.” Additionally, the Office of Judges looked to our
decision in Galen D. Butts v. MA Bongiovanni, Inc., No. 14-0473, 2015 WL 5883330 (W.Va.
Oct. 7, 2015)(memorandum decision), in which we affirmed the closure of Mr. Butts’s claim on
a temporary total disability basis pursuant to the provisions of West Virginia Code of State Rules
§ 85-21-9.5. Therefore, pursuant to its application of West Virginia Code of State Rules § 85-21­
9.5 and our decision in Butts, the Office of Judges determined that the claims administrator
properly closed the claim on a temporary total disability basis. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges.

        On appeal, Ms. Bays asserts that the Office of Judges and Board of Review erred by
failing to analyze the claim pursuant to the opt-out provision referenced within West Virginia
Code of State Rules § 85-21-9.5. She further asserts that pursuant to the opt-out provision, Dr.
Whitfield is eligible to certify a period of temporary total disability. The opt-out provision
referenced within West Virginia Code of State Rules § 85-21-9.5 is enumerated within West
Virginia Code of State Rules § 85-21-13.2 (2005) and states:

               Injured workers may access providers who are not participating
               plan providers for treatment purposes only if the injured worker
               has established by competent evidence all of the following: a. The
               injured worker has been treated by providers solely within the
               employer's managed care plan for a period of at least one (1) year;
               b. That for reasons related to the treatment alone, the injured
               worker has not made progress toward recovery that is reasonably
               consistent with the Commission's or upon termination of the
               Commission, the insurance commissioner, treatment guidelines; c.
               That the injured worker establishes to a reasonable certainty that
               proposed treatment outside the employer's managed care plan
               would more likely provide the injured worker with a better clinical
               outcome than the current treatment or rehabilitation plan; and d. A
               condition of the right to opt out under this provision shall be that
               the services secured outside the plan are for treatment purposes
               only and the provider shall not be permitted to rate the injured
               worker for permanent partial or permanent total disability. Any
               provider providing services pursuant to this provision shall be
               barred from providing such a rating.

(Emphasis added). Although Ms. Bays is correct in her assertion that the Office of Judges and
Board of Review seemingly failed to analyze her claim in relation to the opt-out provision, it is
equally clear that the provision does not apply to the case at bar. The rule clearly provides that in
                                                 3
order for the opt-out provision to apply, an injured worker must have been treated solely by
providers within the employer’s managed care network for a period of at least one year. The
evidentiary record clearly demonstrates that Ms. Bays was not treated solely by providers within
the employer’s managed care network for a period of at least one year. Dr. Whitfield, who is
undisputedly not an in-network healthcare provider for the claims administrator and on whose
opinion Ms. Bays seeks to rely, initially treated her on June 25, 2015, which is approximately
nine months after the date of the compensable injury. Moreover, Dr. Whitfield performed an
unauthorized left hip arthroplasty less than ten months after the date of the compensable injury. It
is therefore clear that the opt-out provision does not apply to the case at bar, and Dr. Whitfield is
ineligible to certify a period of temporary total disability in the instant claim.

        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: August 24, 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




                                                 4
