                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

ERIC M. TYGRETT,                                                                    FILED
                                                                                   June 22, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 15-0272 (BOR Appeal No. 2049831)
                   (Claim No. 2011021390)

CSX HOTELS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Eric M. Tygrett, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. CSX Hotels, Inc., by Gary W.
Nickerson and James W. Heslep, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed a September 5, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 27,
2013, decision to deny reopening of Mr. Tygrett’s claim for additional temporary total disability
benefits from August 11, 2013, to September 23, 2013, and to deny the authorization for a
referral to Rajesh Patel, M.D. 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. Tygrett worked in the Greenbrier Hotel Corporation maintenance department for
CSX Hotels, Inc. On December 15, 2010, he injured his lower back while bending over and
cleaning soot out of a fireplace. Mr. Tygrett was treated in the emergency room at Greenbrier
Valley Medical Center. The next day, he filed an application for workers’ compensation benefits,
and within the month, the claims administrator held the claim compensable for sprain of the
sacroiliac region and lumbago based on the emergency room diagnoses. Several weeks later, an
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MRI was taken of Mr. Tygrett’s lumbar spine at Greenbrier Valley Medical Center which
revealed foraminal stenosis related to bone and disc disease, which was causing nerve root
compression. Mr. Tygrett then came under the care of Rajesh Patel, M.D., who noted that he had
severe low back pain aggravated by sitting, standing, or lying down. Dr. Patel noted that Mr.
Tygrett was undergoing conservative treatment and that physical therapy, at times, helped with
his pain. Dr. Patel found that he had lumbar disc bulges and foraminal stenosis at the L4-5 disc
and herniations at the L3-4 and L4-5 discs. However, he recommended that Mr. Tygrett continue
with physical therapy before attempting to treat his injury with surgery.

        On March 15, 2011, A. E. Landis, M.D., performed an evaluation of Mr. Tygrett. He
found that Mr. Tygrett sustained a sprain of the lower back which was superimposed upon pre­
existing degenerative changes in the lumbar spine. Dr. Landis found that the compensable sprain
aggravated Mr. Tygrett’s pre-existing degenerative condition.1 Dr. Landis did not believe Mr.
Tygrett had reached his maximum degree of medical improvement and recommended that he
continue receiving conservative treatment for the injury. He predicted that Mr. Tygrett would be
able to return to work in a month. Dr. Patel also found that Mr. Tygrett continued to complain of
severe pain in his back. He noted, however, that physical therapy was reducing his pain. Dr.
Patel still recommended that Mr. Tygrett remain off work because of his severe pain.

        A month later, Barry Vaught, M.D., also treated Mr. Tygrett and noted that Mr. Tygrett
believed he was getting stronger and that his pain was less severe. Based on Mr. Tygrett’s
continuing complaints of pain, the claims administrator granted him temporary total disability
benefits from December 18, 2010, to April 30, 2011. The claims administrator also authorized
his request for transforaminal and facet injections at the L5-S1 disc.

        On June 20, 2011, the claims administrator closed Mr. Tygrett’s claim for temporary total
disability benefits finding that there was no evidence that he continued to be disabled. Soon
afterwards, on July 12, 2011, Dr. Landis evaluated Mr. Tygrett and determined that he had
reached his maximum degree of medical improvement. He recommended that Mr. Tygrett return
to full-duty work. Dr. Landis also recommended that Mr. Tygrett follow-up with Dr. Patel every
four to six months for periodic treatment.

        Following Dr. Landis’s evaluation, Mr. Tygrett did not report any pain for over a year.
However, during the latter half of 2012 he began to experience pain in his lower back and
requested transforaminal injections at the L5-S1 disc and facet joint injections at the L3-S1 discs.
Rebecca Thaxton, M.D., reviewed Mr. Tygrett’s request and recommended that the claims
administrator deny authorization of the injections. Dr. Thaxton noted that it had been over a year
since Mr. Tygrett received treatment related to the compensable injury. Dr. Thaxton believed that
Mr. Tygrett had recovered from the compensable sprain and the aggravation of his pre-existing
spinal degeneration, which was related to the compensable injury. She believed that his current
symptoms were entirely caused by his pre-existing degenerative condition. Mr. Tygrett,

1
  The parties have not presented any evidence that Mr. Tygrett’s pre-existing conditions were added to the claim.
However, in the early period of his recovery, Mr. Tygrett received treatment related to both his compensable lumbar
sprain and the aggravation of his pre-existing degenerative condition.
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however, submitted an application to have his claim reopened for additional temporary total
disability benefits from August 11, 2013, through September 23, 2013. He also requested that he
be referred to Dr. Patel for further evaluation. His application was accompanied by treatment
notes from John Runnion, PA-C, who found that Mr. Tygrett has not been able to work for two
weeks due to his pain. Mr. Tygrett’s reopening application was submitted to Dr. Thaxton, and
after reviewing his records, she recommended that the claims administrator deny his request for
temporary total disability benefits as well as his request for a referral to Dr. Patel. She believed
that the additional period of disability was related to Mr. Tygrett’s underlying degenerative
condition and that the referral to Dr. Patel would be for treatment of this non-compensable
condition instead of the work-related injury.

       Based on Dr. Thaxton’s recommendation, on September 27, 2013, the claims
administrator denied Mr. Tygrett’s reopening request and denied authorization for a referral to
Dr. Patel. Following this denial, Mr. Tygrett testified by deposition that he returned to work in
May of 2011. He also stated that after he received injections in October of 2011 he did not feel
any pain in his low back until August of 2012. On September 5, 2014, the Office of Judges
affirmed the claims administrator’s September 27, 2013, decision. The Board of Review
affirmed the Office of Judges’ Order on February 25, 2015, leading Mr. Tygrett to appeal.

        The Office of Judges concluded that Mr. Tygrett did not establish that he suffered an
aggravation or progression of his compensable condition which would entitle him to have his
claim reopened for additional temporary total disability benefits. The Office of Judges also
concluded that the requested referral to Dr. Patel was not medically related or reasonably
required to treat Mr. Tygrett’s compensable injury. The Office of Judges found that the evidence
in the record indicated that Mr. Tygrett’s current complaints of pain were not related to the
compensable injury. It found, based on Dr. Landis’s evaluations, that Mr. Tygrett has pre­
existing degenerative changes in his lower back which were aggravated by the compensable
sacroiliac sprain. However, the Office of Judges determined that Mr. Tygrett had recovered from
the compensable injury and the aggravated pre-existing condition at the time of Dr. Landis’s
finding of maximum medical improvement. The Office of Judges found that Mr. Tygrett did not
need any additional treatment for his lower back until over a year after Dr. Landis’s finding of
maximum medical improvement. Based on this gap in treatment, the Office of Judges concluded
that Mr. Tygrett’s current disability and need for the referral were not related to the compensable
sacroiliac sprain.

       The Board of Review affirmed the Order of the Office of Judges. We agree with the
decisions of the Office of Judges and Board of Review. The record supports the decision that Mr.
Tygrett’s current complaints of pain are not related to his compensable injury.

        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.


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                                     Affirmed.

ISSUED: June 22, 2016


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




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