                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DONALD DILLON,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0358 (BOR Appeal No. 2047724)
                   (Claim No. 2011030227)

UNITED PARCEL SERVICE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Donald Dillon, by John Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. United Parcel Service, Inc., by Jeffrey
Brannon, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 21, 2013, in
which the Board affirmed an August 28, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed, in part, and reversed, in part, the claims
administrator’s June 6, 2011, decision which denied all treatment outside of the period from
April 6, 2011, to May 23, 2011, and limited temporary total disability benefits from April 6,
2011, to May 23, 2011. In its Order, the Office of Judges also affirmed the claims administrator’s
August 22, 2011, decision which granted Mr. Dillon a 3% permanent partial disability award.
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. Dillon, a delivery driver, developed Achilles tendonitis in the course of his
employment. He was first diagnosed with the condition on January 25, 2011. He was treated and
released to return to work on light duty on January 28, 2011. Mr. Dillon testified in a deposition
on February 21, 2012, that he was unable to return to work after January 28, 2011, because
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United Postal Service, Inc., did not offer light duty and he was unable to perform his regular job
duties. Mr. Dillon testified that he was treated by an out of network provider, Dr. Wood, in
February of 2011. His supervisor then informed him that he was required to see an approved
provider so Mr. Dillon was referred to Kevin Brown, D.P.M. Dr. Brown diagnosed Achilles
bursitis or tendinitis and excused Mr. Dillon from work from April 6, 2011 to May 23, 2011.

        Mr. Dillon underwent four independent medical evaluations in order to determine the
amount of permanent impairment he sustained as a result of his compensable injury. Joseph
Grady II, M.D., examined Mr. Dillon on July 26, 2011, and found that he had reached maximum
medical improvement. He noted a slight decrease in range of motion in the right ankle and
assessed 3% impairment. Prasadarao Mukkamala, M.D., and Phillip Surface, D.O., also found
that Mr. Dillon had reached maximum medical improvement and had sustained 3% impairment
from his compensable injury in their February 27, 2012, and May 9, 2012, independent medical
examinations. On December 16, 2011, Victor Poletajev, D.C., found that Mr. Dillon had
sustained 3% impairment for range of motion loss, 5% impairment for loss of muscle strength of
dorsal flexion, and 2% impairment for loss of muscle strength of eversion for a combined total of
10% impairment.

        On June 6, 2011, the claims administrator denied all treatment outside of the period from
April 6, 2011, to May 23, 2011, and limited temporary total disability benefits from April 6,
2011, to May 23, 2011. In its August 22, 2011, decision, the claims administrator granted Mr.
Dillon a 3% permanent partial disability award. In its August 28, 2012, Order, the Office of
Judges affirmed the June 6, 2011, claims administrator’s decision insofar as it limited temporary
total disability benefits to the period from April 6, 2011, through May 23, 2011. It reversed and
vacated the decision insofar as it denied all treatment outside of the period from April 6, 2011,
through May 23, 2011. The Office of Judges also affirmed the August 22, 2011, claims
administrator’s decision. On appeal, Mr. Dillon asserts that he is entitled to temporary total
disability benefits outside of the allowed time period as well as an additional 7% permanent
partial disability award.

         The Office of Judges found that Mr. Dillon failed to meet his burden of proof to
demonstrate his entitlement to additional temporary total disability benefits because the exact
period or periods of disability are unclear. The first report of injury listed the date of injury as
February 7, 2011; however, the second report of injury and treatment records dated April 6,
2011, listed the date of injury as January 25, 2011. A return to work slip dated January 25, 2011,
released Mr. Dillon to return to work on January 28, 2011, and he testified that he was unable to
return because light duty was not available. However, the Office of Judges found that he also
testified that working in snow aggravated his injury. This indicated to the Office of Judges that
though Mr. Dillon testified he was off of work from January 28, 2011, to April 6, 2011, he
worked at least part of that time. Mr. Dillon also testified that he rearranged his vacation time so
that he would have extra time off in order to heal but the record does not indicate how long said
vacation time lasted. Finally, the Office of Judges held that Mr. Dillon could not receive
temporary total disability benefits from January 25, 2011, through January 28, 2011, pursuant to
West Virginia Code § 23-4-1c(b) (2009) because he was not rendered unable to work for longer

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than three days. Therefore, he was only entitled to temporary total disability benefits from April
6, 2011, to May 23, 2011.

        The Office of Judges found that Mr. Dillon was entitled to no more than a 3% permanent
partial disability award. It noted that there are four independent medical evaluations in the
evidentiary record. Drs. Grady, Mukkamala, and Surface all found that Mr. Dillon sustained 3%
whole person impairment as a result of his compensable injury. Dr. Poletajev opined that he
sustained 10% whole person impairment. The Office of Judges found Dr. Poletajev’s report to be
unreliable because he appeared to measure the same impairment in different ways and his
findings were notably dissimilar to the other examiners of record.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its March 21, 2013, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. Though Mr. Dillon testified he was treated
by Dr. Wood in February of 2011, Dr. Wood’s treatment notes are not of record. There is no
indication in the evidentiary record that he was taken off of work from January 28, 2011, to April
6, 2011, by any physician and he is therefore ineligible for temporary total disability benefits
during that period of time.

        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: June 27, 2014

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




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