                                STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

SPARTAN MINING COMPANY,
Employer Below, Petitioner                                                              FILED
                                                                                     November 1, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs.)      No. 18-0928 (BOR Appeal No. 2052753)                                   SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
                      (Claim No. 2016021952)

LARRY HATFIELD,
Claimant Below, Respondent


                                MEMORANDUM DECISION
      Petitioner Spartan Mining Company, by Counsel Sean Harter, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”).1

        The issues on appeal are medical benefits and temporary total disability benefits. The
claims administrator denied a request for referral to pain management on January 30, 2017. In two
separate Orders dated March 6, 2017, the claims administrator closed the claim for temporary total
disability benefits and denied a request for physical therapy. The Office of Judges reversed the
decisions in its March 5, 2018, Order, authorized pain management and physical therapy, and
granted temporary total disability benefits. The Order was affirmed by the Board of Review in its
Order entered on September 24, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Hatfield, a shuttle car driver, was injured in the course of his employment on February
25, 2016, when a large rock fell on his left foot. The rock had to be removed from his foot with a
pry bar. A treatment note from Raleigh General Hospital Emergency Department that day indicates
Mr. Hatfield reported that a large rock fell on his foot in the coal mines. A CT scan showed
minimally displaced fractures of the first through fourth metatarsals, a fracture in the planar margin


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    A response was not filed on behalf of Mr. Hatfield.
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of the cuboid, and a questionable, tiny fracture in the plantar surface of the lateral cuneiform. Mr.
Hatfield also completed a report of injury that day.

        Mr. Hatfield was treated for the compensable injury by Blake Weeks, D.P.M. On March 1,
2016, Dr. Weeks indicated Mr. Hatfield fractured the second, third, and fourth metatarsals of his
left foot. He also had a chip fracture of the lateral cuneiform. Dr. Weeks diagnosed metatarsal bone
fractures, swelling of the left foot, crush injury, acute foot pain, and a blister. He recommended a
compression splint and a bone stimulator. On March 8, 2016, he placed Mr. Hatfield in a boot. Mr.
Hatfield returned on March 15, 2016, and reported decreased foot swelling but stated that he had
foot and calf pain. The claim was held compensable for fractures of the second, third, and fourth
metacarpals of the left foot and fracture of the left lateral cuneiform.

         Dr. Weeks applied a cast to Mr. Hatfield’s foot on March 29, 2016. The following day, he
noted that Mr. Hatfield would be temporarily and totally disabled from March 1, 2016, through
May 2, 2016. On April 12, 2016, Dr. Weeks put Mr. Hatfield in a short leg splint. He was still
reporting moderate pain and tingling. His symptoms remained unchanged on April 26, 2016, and
Dr. Weeks recommended a CAM walker and suggested Mr. Hatfield begin weight bearing as
tolerated. On April 29, 2016, Dr. Weeks stated that Mr. Hatfield was temporarily and totally
disabled until July 15, 2016. Mr. Hatfield reported no improvement and continued tingling in his
left leg/foot on May 10, 2016.

         On June 24, 2016, Dr. Weeks completed an attending physician’s report stating that Mr.
Hatfield was temporarily and totally disabled until December 30, 2016. Dr. Weeks performed a
left foot fusion, Lisfranc fusion, intercuneiform fusion, and a left third tarsometatarsal joint
arthrodesis on August 5, 2016. The pre- and post-operative diagnoses were left foot first
tarsometatarsal joint arthritis, a left Lisfranc fracture dislocation, intercuneiform osteoarthritis of
the left foot, and a third metatarsal dislocation of the left foot.

        Mr. Weeks underwent physical therapy. On October 20, 2016, he reported that he could
not move his toes, his left foot pain was aggravated by movement, and he had decreased range of
motion and strength in the left foot. Mr. Hatfield returned to Dr. Weeks on November 21, 2016,
and reported increased pain in his fifth left toe after striking it on a bed. Dr. Weeks diagnosed left
foot phalanx fracture, status post foot surgery; edema of the left foot; crush injury; acute left foot
pain; blister; routine healing of left foot metatarsal fractures; neuralgia; and plantar fasciitis. On
November 21, 2016, Dr. Weeks recommended continued physical therapy and gait training. On
November 29, 2016, he completed an attending physician’s report stating that Mr. Hatfield was
temporarily and totally disabled until January 30, 2017. On December 19, 2016, Dr. Weeks noted
that Mr. Hatfield was making slow progress in physical therapy and had improved 50%.

       Marsha Bailey, M.D., performed an independent medical evaluation on January 9, 2017,
in which Mr. Hatfield reported poor balance, occasional falls, an inability to walk without the
CAM walker, decreased bilateral hip range of motion, and reduced activities of daily living. Dr.
Bailey noted that sensory examination was inconsistent in both legs and that the left leg strength
was reduced at a level that was not consistent with his ambulation. Mr. Hatfield had left calf
atrophy and reduced range of motion in the left foot. Dr. Bailey diagnosed chronic left foot pain
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and found Mr. Hatfield to be at maximum medical improvement. She opined that his subjective
complaints far outweigh the objective findings and that there is no medical explanation to support
his complaints of lack of balance and inability to move his left ankle and toes. Dr. Bailey assessed
5% whole person impairment for calf atrophy. She noted that the range of motion measurements
for the left extremity were invalid.

       Mr. Hatfield returned to Dr. Weeks on January 10, 2017, and reported significant pain
during physical therapy. He was still using crutches. Dr. Weeks diagnosed crush injury, healed left
toe fractures, foot swelling, acute foot pain, neuralgia, and plantar fasciitis. Dr. Weeks
recommended long term pain management and stated that Mr. Hatfield should remain off of work.
On February 2, 2017, Dr. Weeks indicated Mr. Hatfield’s symptoms remained unchanged. He
recommended a transfer to a pain management physician but the request was refused because his
pain was found to be unrelated to the compensable injury. Dr. Weeks disagreed and stated that all
of Mr. Hatfield’s pain is related to the compensable injury. Dr. Weeks wrote a letter on March 22,
2017, stating that Mr. Hatfield requires authorization for physical therapy because he had not yet
reached maximum medical improvement. If he does not continue therapy, Dr. Weeks stated that
his condition may decline.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 9,
2017, in which he noted that Mr. Hatfield’s only symptom was balance issues with the left foot.
On examination, he had reduced range of motion in the left ankle and foot. Dr. Mukkamala noted
that Mr. Hatfield had atrophy of the left calf and walked with a limp. Dr. Mukkamala found that
he had reached maximum medical improvement. He opined that Mr. Hatfield showed a significant
degree of symptom magnification. He stated that physical therapy and pain medication are not
reasonably required treatment for the compensable injury. Dr. Mukkamala concurred with Dr.
Bailey’s findings and conclusions.

       In a June 29, 2017, treatment note, Dr. Weeks stated that Mr. Hatfield was progressing well
with weight-bearing but still had some balance issues. On August 3, 2017, Mr. Hatfield reported
the new symptom of left heel pain that had been present and progressively worsening for ten
weeks. Dr. Weeks recommended injections, exercises, and physical therapy. On August 31, 2017,
Mr. Hatfield had a new complaint of first metatarsophalangeal joint pain. His heel pain had
improved. Dr. Weeks reported that Mr. Hatfield’s joint pain had improved approximately 75% on
October 5, 2017. He again recommended physical therapy and injections.

        The claims administrator denied a request for referral to pain management on January 30,
2017. On March 6, 2017, in two separate decisions, it closed the claim for temporary total disability
benefits and denied a request for physical therapy. The Office of Judges reversed the decisions in
its March 5, 2018, Order, authorized pain management and physical therapy, and granted
temporary total disability benefits.

       The Office of Judges found that Mr. Hatfield sustained a significant injury to his left leg
and foot. He underwent conservative treatment and when that failed, surgery. He was treated by
Dr. Weeks, a foot/ankle specialist, who saw him several times for the compensable injury. Dr.
Weeks consistently documented Mr. Hatfield’s pain and balance issues. The Office of Judges
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found that Dr. Weeks’s treatment recommendations of continued physical therapy and pain
management are reasonable and supported by the evidentiary record. The Office of Judges noted
that the employer argued Mr. Hatfield is faking his symptoms. However, the Office of Judges
found that he sustained a serious injury and had numerous treatment sessions with Dr. Weeks. The
Office of Judges further found that Drs. Bailey and Mukkamala both documented left calf atrophy
in their evaluations. Atrophy is an objective sign that Mr. Hatfield has difficulty moving his left
foot/ankle. Additionally, Dr. Mukkamala admitted in his evaluation that Mr. Hatfield needs
ongoing treatment in the form of a home exercise program. Dr. Weeks recommended formal
physical therapy. The Office of Judges found that the medical record adequately explains why Mr.
Hatfield needs continued treatment. Lastly, the Office of Judges stated that the employer argued
that Dr. Weeks is treating noncompensable conditions. The Office of Judges found the argument
to be without merit. Mr. Hatfield has walked with an altered gait since the injury occurred, which
causes some discomfort in other parts of the foot/ankle. Based on a preponderance of the evidence,
the Office of Judges concluded that the requested physical therapy and referral to pain management
should be authorized.

         The Office of Judges further found that the claim was improperly closed for temporary
total disability benefits. It determined that Dr. Weeks wrote on several occasions after Dr. Bailey’s
evaluation that Mr. Hatfield was not at maximum medical improvement. The medical evidence
shows ongoing treatment both before and after the claim was closed for temporary total disability
benefits. Further, Dr. Weeks noted that Mr. Hatfield was making slow progress. The Office of
Judges found that he has ongoing symptoms of leg lower extremity pain and reduced range of
motion. It further determined that Drs. Bailey and Mukkamala documented calf atrophy but then
glossed over Mr. Hatfield’s continued symptoms. Because he requires ongoing treatment for the
compensable injury, the Office of Judges reversed the claims administrator’s closure of the claim
for temporary total disability benefits. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on September 24, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The Office of Judges committed no reversible error in finding
that Dr. Weeks’s opinion was more persuasive than that of Drs. Bailey and Mukkamala. Dr. Weeks
is a foot/ankle specialist and has treated Mr. Hatfield’s compensable injury since it occurred. He
has consistently documented his pain, difficulty with balance, and range of motion issues. A
preponderance of the evidence shows that Mr. Hatfield has not reached maximum medical
improvement and requires ongoing treatment. Temporary total disability benefits are also proper
since he continues to remain off of work due 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 so clearly wrong that even when all inferences are resolved in favor
of the Board’s findings, reasoning, and conclusions, there is insufficient support to sustain the
decision. Therefore, the decision of the Board of Review is affirmed.


                                                                                          Affirmed.
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ISSUED: November 1, 2019


CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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