                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
BEST BUY,                                                                         December 6, 2016
                                                                               RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 15-1153 (BOR Appeal No. 2050493)
                    (Claim No. 2011012729)

JENNIFER PARRISH,
Claimant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Best Buy, by Jeffrey M. Carder, its attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Jennifer Parrish, by J. Thomas Greene Jr.,
her attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 27, 2015, in
which the Board affirmed the April 29, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s April 30, 2014,
decision closing the claim for temporary total disability benefits and granting compensability on
a limited basis, which decision did not include complex regional pain syndrome. It also reversed
the claims administrator’s December 4, 2014, decision denying a request to reopen the claim for
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. Parrish, who worked in inventory management, was injured on September 23, 2010,
when her right foot was crushed by a pallet jack. The claims administrator accepted
compensability of the claim for a right foot crush injury. Temporary total disability benefits were
paid for intermittent periods of time. A February 9, 2011, nuclear bone scan revealed extensive
uptake in the left foot secondary to osteoarthritis, complex regional pain syndrome, or
neuropathic pain. On July 13, 2011, Steven C. Miller, M.D., diagnosed tenosynovitis of the foot

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with elements of continued, intermittent regional pain syndrome. A trial spinal cord stimulator
was authorized on February 8, 2013. A permanent spinal cord stimulator was later authorized.

        On January 7, 2014, Ms. Parrish was treated by Christopher Edwards, D.O., at Fairmont
General Hospital after slipping and falling on ice. He was unable to tell if the spinal cord
stimulator was still in place because it was not charged. Dr. Edwards diagnosed acute back and
tailbone pain. Lumbar spine x-rays taken on January 13, 2014, showed the spinal cord stimulator
to be in its proper place.

        On January 20, 2014, Anna Allen, M.D., diagnosed complex regional pain syndrome and
pain from the implanted hardware. Bill Hennessey, M.D., performed an independent medical
evaluation on April 24, 2014. He noted Ms. Parrish’s calf measurements only varied slightly and
both legs appeared symmetrical. He found no evidence of complex regional pain syndrome
during his evaluation, but noted Ms. Parrish may have had a mild case of complex regional pain
syndrome in the past. He believed Ms. Parrish had reached maximum medical improvement and
did not believe any additional medical treatment was necessary.

        The claims administrator entered a claim decision on April 30, 2014, which stated in part,
“Your application for benefits filed in the above claim was previously approved for right foot
crush injury. You are eligible for temporary total disability benefits from April 22, 2014, through
April 30, 2014”. 1 The Office of Judges found the decision of the claims administrator to be
ambiguous as to its purpose. It found that the decision could be construed to indicate that the
only compensable condition in the claim was the right foot crush injury. Therefore, the Office of
Judges determined that it would consider whether reflex sympathetic dystrophy should be a
compensable condition.2 The Office of Judges reviewed the records and reports of the physicians
and determined that six treating physicians had opined that Ms. Parrish had complex regional
pain syndrome.3 Additionally, Dr. Hennessey agreed that Ms. Parrish may have had complex
regional pain syndrome. Therefore, the Office of Judges determined that that the diagnosis of
complex regional pain syndrome should be compensable. It reversed the decision and ordered the
claims administrator to enter a decision finding complex regional pain syndrome compensable.

        The claims administrator issued a second decision on April 30, 2014, closing the claim
for temporary total disability benefits based on the independent medical evaluation of Dr.
Hennessey. In its April 29, 2015, Order, the Office of Judges determined that the claims
administrator closed the claim without first suspending the benefits and allowing Ms. Parrish to
submit evidence of her continued disability. Therefore, the Office of Judges reinstated Ms.
Parrish’s temporary total disability benefits from May 1, 2014, until the claims administrator
1
  This was not the only decision regarding temporary total disability benefits issued by the claims

administrator, nor the only period of temporary total disability benefits awarded.

2
  It does not appear that Ms. Parrish submitted a request to add reflex sympathetic dystrophy and/or

complex regional pain syndrome as a compensable condition(s). It is unclear from the record when, why,

or by whom compensability of the diagnosis was raised as an issue.

3
  The OOJ uses the terms reflex sympathetic dystrophy and complex regional pain syndrome

interchangeably.


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acted upon the issue after a reassessment of Ms. Parrish’s condition based upon all the medical
evidence.

        The Office of Judges then turned to the December 4, 2014, decision of the claims
administrator denying Ms. Parrish’s request to reopen the claim for additional temporary total
disability benefits. It reversed the claims administrator’s decision because it stemmed from the
improper closure of temporary total disability benefits. The Office of Judges also ordered the
December 4, 2014, request to reopen not to count as one of Ms. Parrish’s two allowable
reopening requests.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges in affirming its Order on October 27, 2015. The Board of Review added that any payment
to Ms. Parrish be paid within fifteen days of the date of its decision and that any other action that
may be required as a result of its decision taken place within fifteen days of the date of its
decision.

        The medical evidence supports the addition of complex regional pain syndrome as a
compensable condition. The claims administrator treated complex regional pain syndrome as a
compensable condition as evidenced by the authorization and payment for medical treatment
related to the condition, even though it does not appear that a formal request to add the condition
as compensable was ever made. Additionally, the claims administrator should have suspended
the temporary total disability benefits before closing the claim. If the claims administrator had
done so, Ms. Parrish may not have needed to submit a motion to reopen.

        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: December 6, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II



DISSENTING:
Justice Margaret L. Workman

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