                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  February 23, 2018
LEONARD CANTLEY,                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                       OF WEST VIRGINIA



vs.)   No. 17-0867 (BOR Appeal No. 2051938)
                   (Claim No. 2015016158)

BECKLEY STEEL, INC.,
Employer Below, Respondent

                              MEMORANDUM DECISION
      Petitioner Leonard Cantley, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Beckley Steel, Inc., by Daniel G.
Murdock, its attorney, filed a timely response.

        The issue on appeal is the proper period of temporary total disability benefits to be
awarded to Mr. Cantley. On June 10, 2016, the claims administrator denied a request for
temporary total disability benefits from January 20, 2015, through May 9, 2016. The Office of
Judges reversed the decision in its March 13, 2017, Order, and granted temporary total disability
benefits from January 20, 2015, through May 9, 2016.1 The Order was modified by the Board of
Review on September 1, 2017, to grant benefits from May 9, 2016, through June 16, 2016. 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. Cantley, a truck loader, was injured in the course of his employment on November
5, 2014, while lifting a piece of iron. The employer’s report of injury indicates Mr. Cantley was

1
 Based on a reading of the decision in its entirety, the Office of Judges seems to have mistakenly
put the start date of temporary total disability benefits as January 20, 2016, when it intended the
date to be January 20, 2015.
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injured on November 5, 2014, and reported the injury to his supervisor, Robert Palmer. The
injury was listed as back sprain/strain. The employee’s and physician’s report of injury indicates
the claimant was lifting a piece of iron when he felt something pop in his back. He was
diagnosed with a lumbar sprain and released to return to modified duty on November 10, 2014,
with restrictions in bending/stooping, lifting, kneeling, walking, and standing.

        Prior to the compensable injury, Mr. Cantley had a history of lower back injuries. A
lumbar x-ray taken on March 3, 2010, showed spondylosis at multiple levels including T12-L6
with loss of disc space height at every level. There were multiple interbody disc herniations and
it was noted that the claimant may have Scheuermann’s disease. There was also facet arthropathy
at L4-5 and L5-S1. A November 13, 2010, lumbar x-ray was compared to the prior x-ray. The
impression was osteoarthritic changes of the lumbar articular facet joint, diffuse narrowing of
lumbar intervertebral disc spaces, and no evidence of acute fractures. Lumbar x-rays taken on
May 19, 2013, showed chronic degenerative disc disease.

         Mr. Cantley testified in a deposition on June 10, 2015, that on the date of injury, he
picked up a piece of iron and felt a pop in his back. He finished his shift out of fear of losing his
job. He attempted to work the following day but quickly realized he was unable to perform his
duties. He filed an accident report and sought treatment at MedExpress. Mr. Cantley stated that
he had x-rays completed but authorization for an MRI was denied. He stated that he then went to
Raleigh General Hospital where a CT revealed bulging discs. Mr. Cantley admitted that he had
previously injured his back at work and was off for four days, but asserted that the current injury
felt different in that he can hardly pick his legs up now. He stated that prior to the November 5,
2014, injury, he was not having any back problems and was on no medication. He was not under
a physician’s care at the time of the deposition.

        On January 13, 2016, ChuanFang Jin, M.D., completed a file review report in which she
opined that there was no persuasive medical evidence to support the assumption that there was a
work-related injury to the lumbar spine. She asserted that Mr. Cantley’s clinical symptoms are
part of the natural history of degenerative lumbar disc disease, as shown on a March 3, 2010, x-
ray. Dr. Jin opined that Mr. Cantley’s treatment history since 2001 shows chronic degenerative
disc disease gradually worsening over time. She found no diagnosis for a workers’ compensation
claim since the symptoms are difficult to differentiate from a mechanical strain type of injury.
She opined that if an injury did occur, it would have been a sprain/strain type of injury, which
heals in a few weeks or months. Dr. Jin stated that Mr. Cantley’s current symptoms are unlikely
from a sprain and are likely due to chronic degenerative disc disease, which commonly causes
chronic symptoms. She recommended no additional medical treatment.

        A treatment note from MedExpress dated May 9, 2016, indicates Mr. Cantley was seen
for follow-up for his compensable injury. The assessment was lumbar sprain. Mr. Cantley was
taken off of work until after an MRI and appointment with Rajesh Patel, M.D. On June 16, 2016,
Paul Bachwitt, M.D., performed an independent medical evaluation and found that Mr. Cantley
had reached maximum medical improvement. He found no clinical findings of a herniated disc
on his examination. Using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993), Dr. Bachwitt found 5% lumbar spine impairment due to
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the compensable injury. He stated that it would not be unreasonable to perform a lumbar MRI,
but he doubted it would show anything. Dr. Bachwitt further opined that a neurosurgical referral
was unnecessary and that Mr. Cantley’s current complaints were related to his multiple prior
back injuries and preexisting degenerative changes.

       A lumbar MRI performed on August 30, 2016, showed disc herniations and degeneration
at L5-S1, L2-3, L3-4, and L4-5. It also showed osteoarthritic vertebral body lipping and facet
hyperostosis. Mr. Cantley stated in a September 14, 2016, affidavit that he sought treatment at
MedExpress until he was forced to discontinue treatment because the claim was rejected. Once it
was held compensable, he resumed treatment.

        On June 10, 2016, the claims administrator denied a request for temporary total disability
benefits from January 20, 2015, through May 9, 2016. On March 13, 2017, the Office of Judges
reversed the decision and granted temporary total disability benefits from January 20, 2015,
through June 16, 2016. It found that the evidence of record fails to show that Mr. Cantley was
ever released to return to work after January 9, 2015. Though there are no treatment notes
between that date and May 9, 2015, Mr. Cantley explained that he was forced to discontinue
treatment because the claim was initially rejected. He resumed treatment days after the claim was
held compensable. On May 9, 2016, a Workers’ Compensation Duty Form completed by
MedExpress indicated Mr. Cantley was unable to work until an MRI and an appointment with
Dr. Patel were completed. He was then found to be at maximum medical improvement by Dr.
Bachwitt on June 16, 2016. The Office of Judges therefore concluded that Mr. Cantley was
entitled to temporary total disability benefits from January 20, 2015, through June 16, 2016. The
Office of Judges stated that its decision was based on the fact that there is no credible, reliable
evidence that Mr. Cantley reached maximum medical improvement, was released to return to
work, or returned to work before June 16, 2016.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and modified the Office of Judges Order to grant temporary total disability benefits from
May 9, 2016, through June 16, 2016. The Board of Review found that Mr. Cantley requested
temporary total disability benefits from January 20, 2015, through May 9, 2016, and the Office
of Judges awarded benefits for that time period. However, the Board of Review found that West
Virginia Code § 23-4-1c(c) (2009) provides that temporary total disability benefits are to be
awarded upon receipt of medical evidence justifying the payment of such benefits. In this case,
the Board of Review found no medical evidence to support the Office of Judges’ decision as
there are no treatment records between January 9, 2015, and May 9, 2016. On May 9, 2016, Mr.
Cantley was treated at MedExpress and taken off of work until he could receive an MRI and
have an appointment with Dr. Patel. On June 16, 2016, he was found to be at maximum medical
improvement. The Board of Review therefore concluded that Mr. Cantley was temporarily and
totally disabled from May 9, 2016, through June 16, 2016.

        After review, we agree with the reasoning and conclusions of the Board of Review. It is
the responsibility of the claimant to show by a preponderance of the evidence that he is entitled
to temporary total disability benefits. In this case, Mr. Cantley failed to provide sufficient

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evidence to show that he was temporarily and totally disabled for the period from January 20,
2015, through May 9, 2016.

        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: February 23, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker




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