                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                   November 29, 2016
GREGORY KINGERY,                                                                RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                    SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


vs.)   No. 16-0038	 (BOR Appeal No. 2050753)
                   (Claim No. 2014024721)

HUNTINGTON ALLOYS CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Gregory Kingery, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Huntington Alloys Corporation, by
Jillian Moore, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 23, 2015, in
which the Board affirmed an August 5, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 19,
2014, decision denying Mr. Kingery’s request to reopen his claim for further consideration of
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.

         Mr. Kingery injured his lower back on February 21, 2014, while swinging a
sledgehammer and his claim for workers ’ compensation benefits was held compensable for a
lumbar sprain. He received temporary total disability benefits from the time of the injury until his
initial return to work on May 20, 2014. On May 27, 2014, Prasadarao Mukkamala, M.D.,
performed an independent medical evaluation, and he authored a report memorializing his
findings on May 28, 2014. Dr. Mukkamala diagnosed Mr. Kingery with a lumbar strain, noted

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that he returned to work at his pre-injury position, and opined that he has reached maximum
medical improvement with respect to the compensable injury.

        On December 2, 2014, Allen Young, M.D., Mr. Kingery’s treating physician, completed
a reopening application for temporary total disability benefits. Dr. Young listed Mr. Kingery’s
current diagnoses as a lumbar sprain, a lumbosacral injury, lumbar disc disease, and an annular
tear/disc protrusion at L4-5.1 However, Dr. Young did not indicate that Mr. Kingery sustained an
aggravation or progression of a compensable injury. Additionally, he did not list any physical
findings in support of the reopening request. Dr. Young indicated that Mr. Kingery was unable to
work from June 13, 2014, through October 12, 2014. On December 19, 2014, the claims
administrator denied Dr. Young’s request to reopen Mr. Kingery’s claim for further
consideration of temporary total disability benefits.

        On March 24, 2015, Dr. Young completed a modified duty assessment form in which he
indicated that Mr. Kingery has exacerbated a chronic lumbar injury. Dr. Young further indicated
that Mr. Kingery would be unable to return to work until he was re-evaluated. Mr. Kingery was
deposed on April 8, 2015. He testified that although he returned to work on May 20, 2014, Dr.
Young became concerned that his reports of increased pain indicated that his return to work was
causing nerve damage to his lumbar spine. Mr. Kingery further testified that Dr. Young
requested that he stop working on June 13, 2014.

       In its Order affirming the December 19, 2014, claims administrator’s decision, the Office
of Judges held that Mr. Kingery has failed to demonstrate that he sustained an aggravation or
progression of his compensable injury to justify a reopening of his claim for further
consideration of temporary total disability benefits. The Board of Review affirmed the reasoning
and conclusions of the Office of Judges in its decision dated December 23, 2015. On appeal, Mr.
Kingery asserts that the evidence of record demonstrates that he is entitled to additional
temporary total disability benefits.

       The Office of Judges noted that Mr. Kingery testified that he stopped working on June
13, 2014, at the direction of Dr. Young following his complaints of intense pain. However, the
Office of Judges found that Mr. Kingery’s testimony fails to establish that he sustained an
aggravation or progression of his compensable injury, as is necessary to obtain a reopening of his
claim pursuant to West Virginia Code § 23-5-3 (2009). Further, the Office of Judges noted that
Dr. Young failed to express an opinion regarding whether an aggravation or progression of the
compensable injury occurred. Moreover, the Office of Judges found that Mr. Kingery provided
no medical evidence whatsoever indicating that an aggravation or progression of the
compensable injury occurred. Additionally, the Office of Judges found it noteworthy that Dr.
Young referenced multiple non-compensable diagnoses in his reopening application. Finally, the
Office of Judges determined that the March 24, 2015, modified duty assessment form in which
Dr. Young indicated that Mr. Kingery suffered an exacerbation of a chronic lumbar injury is

1
  As stated above, the only compensable diagnosis in the instant claim is a lumbar sprain. There
is no evidence that a request has been submitted to add any of the additional diagnoses listed by
Dr. Young in the reopening application as compensable diagnoses.
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insufficient to establish that an aggravation or progression of the compensable injury has
occurred. We agree with the reasoning and conclusions of the Office of Judges, as affirmed by
the Board of Review.

        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: November 29, 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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