                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                              January 7, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOSHUA HOLLAND,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0173 (BOR Appeal No. 2049722)
                   (Claim No. 2013022347)

MANPOWER OF WEST VIRGINIA,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Joshua Holland, by Cathy L. Greiner, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Manpower of West Virginia, by T.
Jonathan Cook, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 23, 2015, in
which the Board affirmed an August 25, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 7, 2013,
and November 6, 2013, decisions which respectively denied authorization for physical therapy as
well as work conditioning and closed the claim for temporary total disability benefits. The Office
of Judges also modified a second November 7, 2013, claims administrator decision, which
denied authorization for further treatment, physical therapy, and work conditioning, to provide
for affirming only the denial of physical therapy and work conditioning as a blanket denial of
treatment was not appropriate. 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. Holland worked as a production plant worker at Toyota Motor Manufacturing of
West Virginia for Manpower of West Virginia. On February 20, 2013, Mr. Holland suffered an
injury to his left ankle and leg when he was pinned between two pieces of equipment. Mr.
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Holland immediately filed an application for workers’ compensation benefits. The physician’s
section of his application was filled out by Kara Carpenter, PA-C, who found that Mr. Holland
had a left ankle sprain. On the date of the injury, Mr. Holland had an x-ray taken of his ankle,
which was negative for an acute abnormality. Two months later, an MRI was taken of Mr.
Holland’s left ankle, which also revealed no acute abnormality. Following this MRI, the claims
administrator held the claim compensable for a left ankle sprain and contusion. The claims
administrator also granted Mr. Holland temporary total disability benefits from February 27,
2013, through April 23, 2013. The claims administrator subsequently granted Mr. Holland
additional temporary total disability benefits from April 24, 2013, through July 2, 2013.

        Mr. Holland then was treated by a podiatric specialist, Kevin B. Brown, DPM. Dr. Brown
also assessed Mr. Holland for reflex sympathetic dystrophy of the left ankle. He recommended
that Mr. Holland receive physical therapy four times per week for eight weeks. An
electromyography and nerve conduction study taken at this time was normal. The claims
administrator held the claim compensable for a left ankle sprain, a left ankle contusion, and
reflex sympathetic dystrophy. It also granted Mr. Holland temporary total disability benefits
from July 3, 2013, through September 24, 2013.

        Jerry W. Scott, M.D., performed an independent medical evaluation of Mr. Holland. He
found that Mr. Holland’s ankle healed excellently but that his response to treatment had
plateaued. Dr. Scott noted that there were no objective signs to support Mr. Holland’s subjective
complaints. Dr. Scott also found that there was no evidence indicating that Mr. Holland could not
return to his pre-injury employment. However, Dr. Brown issued a report immediately following
Dr. Scott’s evaluation in which he found that Mr. Holland was unable to return to work until
December 12, 2013. The claims administrator then granted authorization for physical therapy
and work conditioning. However, several days later, on November 6, 2013, the claims
administrator closed Mr. Holland’s claim for temporary total disability benefits. The next day,
Dr. Scott issued an addendum to his report. He found that Mr. Holland had received extensive
physical therapy with little improvement. He also believed that work conditioning would not
significantly affect Mr. Holland’s condition. The same day, November 7, 2013, the claims
administrator revoked its prior decision granting authorization for physical therapy and work
conditioning. The claims administrator also issued a separate decision on November 7, 2013,
denying authorization for further treatment, including physical therapy and work conditioning,
based on Dr. Scott’s evaluation.

        Nevertheless, Mr. Holland continued to receive treatment from Dr. Brown who found
that his ankle symptoms had grown worse. Dr. Brown believed that Mr. Holland had suffered a
flare-up of reflex sympathetic dystrophy. He recommended that Mr. Holland receive additional
physical therapy and be granted temporary total disability benefits until January 14, 2014.
Despite Dr. Brown’s assessment, Manpower of West Virginia contacted Mr. Holland and offered
him a job with restricted work duties. The employment opportunity was scheduled to begin on
December 16, 2013, but Mr. Holland refused the offer because Dr. Brown had not released him
to return to work. A month later, Dr. Brown treated Mr. Holland again and stated that he was
unable to return to work until March 4, 2014.

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        Bill Hennessey, M.D., also performed an independent medical evaluation of Mr. Holland.
He found that Mr. Holland had reached his maximum degree of medical improvement with
respect to his left ankle sprain and contusion. Dr. Hennessey believed that Mr. Holland did not
have reflex sympathetic dystrophy because all the imaging and electrodiagnostic findings were
normal. He also recommended against authorizing any additional treatment including physical
therapy and work conditioning. He found that Mr. Holland had no physical limitations that
would prevent him from returning to his pre-injury employment. Based on Dr. Hennessey’s
evaluation, the claims administrator revoked the previously accepted diagnosis of reflex
sympathetic dystrophy.1 On August 25, 2014, the Office of Judges affirmed the claims
administrator’s November 6, 2013, decision and both November 7, 2013, decisions insofar as
they closed the claim for temporary total disability benefits and revoked authorization for
physical therapy and work conditioning. The Office of Judges also modified the claims
administrator’s November 7, 2013, decision insofar as it implied a blanket denial of future
medical benefits and directed the claims administrator to issue protestable decisions on each
request for treatment.2 The Board of Review affirmed the Order of the Office of Judges on
January 23, 2015, leading Mr. Holland to appeal.

        The Office of Judges concluded that the claim was appropriately closed for temporary
total disability benefits and that the requested physical therapy and work conditioning were
appropriately denied because they were not medically related and reasonably required to treat the
compensable left ankle sprain and contusion. The Office of Judges based this conclusion on the
evaluation of Dr. Scott and Dr. Hennessey, who both found that Mr. Holland had reached his
maximum degree of medical improvement. The Office of Judges also found that both evaluations
supported denying authorization for the requested physical therapy and work conditioning. It
determined that the only compensable conditions of the claim were an ankle sprain and contusion
and that the requested treatments were not related to those conditions. Instead, the Office of
Judges found that Dr. Brown’s request for physical therapy and work conditioning was related to
the previously revoked, non-compensable diagnosis of reflex sympathetic dystrophy. The Board
of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Holland has not presented sufficient evidence that he is entitled to any additional
temporary total disability benefits beyond November 6, 2013, when his claim was closed. The
evidence in the record shows that Mr. Holland received several weeks of temporary total
disability benefits following the date of the injury but that Dr. Scott found that he had reached his
maximum degree of medical improvement. Dr. Scott’s finding is supported by the evaluation of
Dr. Hennessey and by the diagnostic evidence in the record, which revealed no objective
indication of ongoing physical ailments related to the compensable injury. The Office of Judges
was within its discretion in relying on Dr. Scott’s and Dr. Hennessey’s opinions. Mr. Holland has

1
  The claims administrator’s May 28, 2014, decision revoking the previously accepted diagnosis of reflex
sympathetic dystrophy as a compensable condition of the claim was not submitted into the record before the Office
of Judges. We have taken judicial notice of this revocation under Rule 201(b) of the West Virginia Rules of
Evidence because it is “not subject to reasonable dispute” and “can be accurately and readily determined” on the
face of the claims administrator’s decision.
2
  Mr. Holland has not protested this part of the Office of Judges’ Order.
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also not demonstrated that the requested physical therapy and work conditioning are medically
related and reasonably required to treat his compensable injury. The only compensable
conditions of the claim are an ankle sprain and contusion. Although the claim was initially held
compensable for reflex sympathetic dystrophy in addition to an ankle sprain and contusion, the
claims administrator corrected this earlier decision and revoked the addition of reflex
sympathetic dystrophy. The claims administrator’s rejection of this diagnosis was consistent with
its jurisdiction under West Virginia Code § 23-5-1(e) (2009) which permits the claims
administrator to correct or set aside an erroneous or defective decision within two years of the
date it was issued. The corrected decision was made within that statutory period, and there is no
evidence in the record that Mr. Holland appealed the corrected decision. Because the evidence in
the record, including the treatment notes of Dr. Brown, indicate that the requested physical
therapy and work conditioning were related to the non-compensable reflex sympathetic
dystrophy, the Office of Judges properly determined that the requested treatments should not be
authorized.

        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: January 7, 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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