                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              October 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
STEVEN CHRISTENSEN,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0046 (BOR Appeal No. 2049590)
                   (Claim No. 2013005932)

IVS HYDRO, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Steven Christensen, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. IVS Hydro, Inc., by Lisa Warner
Hunter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 19, 2014, in
which the Board affirmed a June 27, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges modified the claims administrator’s July 25, 2013,
decision which granted Mr. Christensen temporary total disability benefits from July 11, 2013, to
August 6, 2013. The Office of Judges also granted Mr. Christensen benefits from August 18,
2012, to August 23, 2012, as well as from October 8, 2012, to October 22, 2012. 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. Christensen worked as a vacuum and water blaster technician for IVS Hydro, Inc. On
August 7, 2012, he developed pain in his left elbow following a multiple-day period of
manipulating a pressurized hose to clean out a sewer line. Two weeks later, Mr. Christensen was
treated at Charleston Area Medical Center for pain in his left elbow. Gregory D. Kelly, D.O.,
noted that Mr. Christensen’s pain was caused by using a high pressure hose at work. He
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diagnosed Mr. Christensen with lateral epicondylitis of the left elbow and told him to remain off
work for a few days. Mr. Christensen submitted an application for workers’ compensation
benefits on August 18, 2012. The physician’s section of the report was filled out by Dr. Kelly
who listed Mr. Christensen’s condition as acute lateral epicondylitis of the left elbow. Dr. Kelly
also stated that Mr. Christensen should remain off work until August 23, 2012. Mr. Christensen
was also treated by Chris Santangelo, PA-C., who found that he had trouble lifting any object
because of the pain in his left elbow. He also recommended that Mr. Christensen receive
physical therapy for his elbow. Mr. Christensen continued to receive treatment for his injury at
Charleston Area Medical Center, and on September 10, 2012, it was recommended that he be
restricted to working light duty or that he remain off work for a few days. Mr. Christensen
rejected this recommendation. However, a month later, on October 8, 2012, he was treated by
Mr. Santangelo, and he excused Mr. Christensen from work until October 23, 2012.

        The claims administrator initially rejected Mr. Christensen’s application for workers’
compensation benefits, but this decision was reversed by the Office of Judges who held the claim
compensable for lateral epicondylitis of the left elbow. Following this Order, Mr. Christensen
requested temporary total disability benefits from the date of the injury until July 19, 2013,
alleging that he had been unable to work following the injury. In support of his request, Mr.
Christensen submitted a work status report from Jack R. Steel, M.D., who found that he was
unable to work due to his compensable injury but could return to work on October 3, 2013. On
July 25, 2013, the claims administrator granted Mr. Christensen temporary total disability
benefits from July 11, 2013, to August 6, 2013. The claims administrator, however, stated that
further benefits would be paid if Mr. Christensen submitted sufficient medical evidence
certifying the additional period of disability.1

        At the end of this period, Paul Bachwitt, M.D., examined Mr. Christensen and
determined that he had not reached his maximum degree of medical improvement. The claims
administrator then granted Mr. Christensen authorization for four weeks of work hardening and
conditioning. Following this treatment, Dr. Steel also examined Mr. Christensen and determined
that he would be able to return to light duty work on February 27, 2014, and full duty work on
February 28, 2014. Mr. Christensen then testified by deposition that he had been unable to work
since August 18, 2012, when he first received treatment for his injury at Charleston Area
Medical Center. He testified that IVS Hydro, Inc., did not pay him any temporary total disability
benefits until July 11, 2013. On June 27, 2014, the Office of Judges modified the claims
administrator’s July 25, 2013, decision and granted Mr. Christensen additional temporary total
disability benefits from August 18, 2012, to August 23, 2012, and from October 8, 2012, through
October 22, 2012. The Board of Review affirmed the Order of the Office of Judges on December
19, 2014, and Mr. Christensen appealed its decision.

       The Office of Judges concluded that Mr. Christensen was also temporarily and totally
disabled from August 18, 2012, to August 23, 2012, and from October 8, 2012, through October
22, 2012. The Office of Judges based this conclusion on the medical evidence in the record. It

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  The record demonstrates that since issuing its July 25, 2013, decision the claims administrator paid Mr.
Christensen temporary total disability benefits from July 11, 2013, to May 16, 2014.
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found that Dr. Kelly’s statement in Mr. Christensen’s application for workers’ compensation
benefits showed that he was unable to work from August 18, 2012, through August 23, 2012.
The Office of Judges also found that Mr. Santangelo’s treatment notes were sufficient to show
that Mr. Christensen was temporarily and totally disabled from October 8, 2012, through October
22, 2012. It noted that Mr. Christensen alleged in his deposition that he had been unable to work
since he first sought treatment for his injury on August 18, 2012, but the Office of Judges found
that this allegation was contradicted by the medical evidence in the record including treatment
notes from Charleston Area Medical Center reflecting that Mr. Christensen had refused to accept
a work excuse. The Office of Judges found that August 18, 2012, to August 23, 2012, and
October 8, 2012, through October 22, 2012, were the only periods where the medical evidence in
the record supported granting Mr. Christensen additional temporary total disability benefits.
Based on this conclusion, the Office of Judges modified the claims administrator’s decision and
granted Mr. Christensen temporary total disability benefits from August 18, 2012, to August 23,
2012, and from October 8, 2012, through October 22, 2012, in addition to the benefits the claims
administrator had granted him from July 11, 2013, to August 6, 2013. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

       On appeal, Mr. Christensen argues that he is entitled to temporary total disability benefits
from October 22, 2012, to July 11, 2013, in addition to the period of benefits that the claims
administrator and Office of Judges have already granted him.

         We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Christensen has not demonstrated that he is entitled to additional temporary total
disability benefits beyond the period that was provided by the Office of Judges’ Order and the
claims administrator’s decision. Mr. Christensen has submitted sufficient evidence, especially
considering the treatment notes of Dr. Kelly and Mr. Santangelo, that he was entitled to
temporary total disability from August 18, 2012, to August 23, 2012, and from October 8, 2012,
through October 22, 2012, in addition to the benefits granted by the claims administrator’s
decision. Although Mr. Christensen testified in his deposition that he was unable to work since
he first received treatment following the compensable injury on August 18, 2012, this allegation
is not supported by the medical evidence in the record. Dr. Kelly indicated on Mr. Christensen’s
application for workers’ compensation benefits that he would be able to return to work on
August 23, 2012. Mr. Christensen subsequently received treatment from Mr. Santangelo, who
recommended that he remain off work starting on October 8, 2012. However, Mr. Santangelo
stated that Mr. Christensen could return to work on October 23, 2012. There is insufficient
medical evidence in the record indicating that Mr. Christensen was temporarily and totally
disabled between when Mr. Santangelo released him to return to work on October 23, 2012, and
the claims administrator granted him temporary total disability benefits starting on July 11, 2013.
The Office of Judges was within its discretion in granting Mr. Christensen additional temporary
total disability benefits for no longer than the periods of August 18, 2012, to August 23, 2012,
and October 8, 2012, through October 22, 2012.

        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

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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: October 7, 2015

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




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