                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GLENN TOMBLIN,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1210 (BOR Appeal No. 2047138)
                   (Claim No. 2010126344)

PATRIOT COAL CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Glenn Tomblin, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Patriot Coal Corporation, by Henry C.
Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 17, 2012, in
which the Board affirmed a March 30, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 3, 2011,
decision closing the claim for temporary total disability benefits. It also affirmed the claims
administrator’s March 30, 2011, decision denying authorization for a neurosurgical referral and
an April 4, 2011, decision denying authorization for an additional twelve physical therapy
sessions. 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. Tomblin worked as a truck driver for Patriot Coal Corporation when he fell while
getting off a bus on March 1, 2010. The claim was held compensable for right shoulder strain.
Mr. Tomblin is now requesting additional temporary total disability benefits, a neurosurgical
referral, and additional twelve physical therapy sessions. The claims administrator closed the

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claim for temporary total disability benefits, denied a neurosurgical referral, and denied the
additional physical therapy sessions.

        The Office of Judges affirmed the claims administrator’s three separate decisions and
closed the claim for temporary total disability benefits because Mr. Tomblin has reached
maximum medical improvement. It further held that the neurosurgical consultation for Mr.
Tomblin’s lumbar spine and the additional twelve sessions of physical therapy are not medically
related and reasonably necessary to treat the subject injury. On appeal, Mr. Tomblin disagrees
and asserts that the Office of Judges incorrectly relied on the findings of Prasadarao B.
Mukkmala, M.D., that he was at maximum medical improvement because he has not been
released to return to work or from the care of his treating physician. Mr. Tomblin further asserts
that the neurosurgical consult should be authorized for his back condition that is related to the
work injury because he fell squarely on his back and that the physical therapy sessions should be
authorized so he can recover use and function of his right shoulder. Patriot Coal Corporation
maintains that Mr. Tomblin has not shown the claims administrator erred in its decisions and that
both Dr. Mukkamala and Jack R. Steel, M.D., found Mr. Tomblin had reached maximum
medical improvement in December of 2010 and February of 2011 for the right shoulder injury. It
further maintains that Mr. Tomblin has not proved a neurosurgical consult for the low back and
the additional physical therapy sessions are reasonable and necessary in this claim for a right
shoulder injury.

        On the temporary total disability benefits issue, the Office of Judges concluded that the
claims administrator’s holding was correct. The claims administrator closed the claim based on
there being no medical evidence that proved Mr. Tomblin was taken back off work due to the
work-related injury. However, the Office of Judges found the claims administrator's reasoning
was inaccurate because Mr. Tomblin had not returned to work since June 23, 2010. The Office of
Judges concluded that Mr. Tomblin was found to be at maximum medical improvement for his
right shoulder injury based on Dr. Mukkamala’s December 21, 2010, independent medical
evaluation and that this should have been the basis of the claims administrator’s decision. The
Office of Judges noted that, twelve days after the claims administrator’s decision, Dr. Steel, Mr.
Tomblin’s treating physician, found Mr. Tomblin was probably at maximum medical
improvement for his right shoulder. Since Mr. Tomblin’s right shoulder was the only
compensable component, the Office of Judges concluded that the claims administrator did not err
in closing the claim for temporary total disability benefits.

        On January 12, 2011, Dr. Steel requested a neurosurgical consult for evaluation of Mr.
Tomblin’s lumbar disc syndrome and indicated that Mr. Tomblin had persistent radicular pain in
the right leg with mechanical low back pain. However, the right shoulder is the only
compensable component in this claim. Dr. Mukkamala reviewed the December 13, 2010, lumbar
MRI, and on February 4, 2011, he found no indication for a neurosurgical referral. Therefore, the
Office of Judges concluded that a neurosurgical evaluation cannot be found to be medically
related or reasonably necessary for treatment of the subject injury.

       The additional physical therapy sessions were requested by Derek Dalton, D.P.T, on
January 25, 2011, and on February 15, 2011, Dr. Steel concluded that Mr. Tomblin had probably
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reached maximum medical improvement. Between January 25, 2011, and February 15, 2011,
Mr. Tomblin underwent a functional capacity evaluation and Dr. Steel requested authorization of
work conditioning and work hardening. Mr. Tomblin participated in the rehabilitation plan and
received temporary total disability benefits on a rehabilitation basis. Therefore, the Office of
Judges concluded that the treatment was medically related to the work injury but not reasonably
necessary because soon after the request for physical therapy, Mr. Tomblin was deemed ready to
participate in work conditioning and hardening, which he completed.

        The Board of Review affirmed the Order of the Office of Judges. Mr. Tomblin was found
to be at maximum medical improvement by two physicians, including his treating physician, and
participated in a work condition and hardening program. Mr. Tomblin failed to prove that he is
entitled to the requested medical treatment and additional temporary total disability benefits.
This Court agrees with the reasoning and conclusions of the Office of Judges and 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: September 18, 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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