STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS April 24, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
SHERRY GREENE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 12-1482 (BOR Appeal No. 2047317)
(Claim No. 2011040649)
HEARTLAND EMPLOYMENT SERVICES, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Sherry Greene, by Reginald Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Heartland Employment Services, LLC,
by James Heslep, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated November 20, 2012, in
which the Board reversed a June 7, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s October 25, 2011, decision
which closed the claim for 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.
Ms. Greene, a physical therapy assistant, injured her right elbow in the course of her
employment on June 2, 2011, while moving a wheelchair behind a patient. Her claim was held
compensable for right elbow sprain/strain. A progress note by S. Brett Whitfield, M.D., showed
that Ms. Greene’s injury was the result of overuse. Her symptoms began in January of 2011 but
worsened in June of 2011. An MRI showed a partial tear of the brachialis muscle.
When Dr. Whitfield examined her in August of 2011, her brachialis muscle pain had resolved.
She had instead begun experiencing pain in her bilateral forearms. Dr. Whitfield recommended
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Ms. Greene see Joseph Prud’homme, M.D., because it was possible that she was suffering from a
type of inherent muscle problem, such as late onset multiple sclerosis.
Ms. Greene was evaluated by Michael Kominsky, D.C., in September of 2011. During
the evaluation, she reported pain, numbness, and tingling in her bilateral forearms and left hand.
Dr. Kominsky diagnosed her with a sprain/strain of the distal brachialis muscle and ulnar nerve
neuropathy. Paul Bachwitt, M.D., performed an independent medical evaluation one month later
in which he diagnosed a right forearm sprain with possible aggravation of the elbow. He
recommended no further treatment and opined that a consultation with Dr. Prud’homme was
unnecessary. No objective findings were discovered to support the subjective complaints, and
Ms. Greene was deemed to be at maximum medical improvement and capable of returning to
work. In November of 2011, Ms. Greene presented in Raleigh General Hospital’s emergency
room with complaints of bilateral forearm pain. She was advised to stop taking the medication
Crestor because it could be causing myalgia.
In an Office of Judges decision dated April 6, 2012, the Office of Judges authorized a
referral to Dr. Prud’homme and/or another hand specialist. That Order was reversed by the Board
of Review on August 17, 2012. In its decision, the Board of Review found that the claim was
held compensable only for a right elbow sprain/strain. The requested referral was deemed to be
unrelated to and unnecessary for the treatment of the compensable right elbow sprain/strain.
The claims administrator closed the claim for temporary total disability benefits on
October 25, 2011. The Office of Judges reversed that decision in its June 7, 2012, Order. It found
that in the April 6, 2012, Order, the Office of Judges concluded that Dr. Bachwitt’s
determination that Ms. Greene was at maximum medical improvement was premature. The
Office of Judges therefore held that because the Office of Judges had previously granted Ms.
Greene’s request for a referral to a hand specialist, the claim could not be closed for temporary
total disability benefits. Consequently, it reopened the claim for temporary total disability
benefits from the date the benefits were last paid and thereafter as substantiated by proper
medical evidence.
The Board of Review reversed the Order of the Office of Judges in its November 20,
2012, decision. It found that a previous Board of Review decision denied a request for referral to
a hand specialist. It also found that Dr. Bachwitt had deemed Ms. Greene to be at maximum
medical improvement for her compensable right elbow sprain/strain. Accordingly, the Board of
Review reinstated the October 25, 2011, claims administrator’s decision closing the claim for
temporary total disability benefits. This Court agrees with the reasoning and conclusions of 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.
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Affirmed.
ISSUED: April 24, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Menis E. Ketchum
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