STATE OF WEST VIRGINIA FILED
March 19, 2021
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
CASEY COLLEY,
Claimant Below, Petitioner
vs.) No. 20-0027 (BOR Appeal No. 2054470)
(Claim No. 201801436)
HAMPDEN COAL, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Casey Colley, a self-represented litigant, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Hampden Coal, LLC,
by Counsel Sean Harter, filed a timely response.
The issue on appeal is temporary total disability benefits. The claims administrator closed
the claim for temporary total disability benefits on December 18, 2018. The Workers’
Compensation Office of Judges (“Office of Judges”) affirmed the decision in its July 29, 2019,
Order. The Order was affirmed by the Board of Review on December 19, 2019.
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. Colley, a coal miner, injured his lower back and left shoulder in the course of his
employment on December 15, 2017. Mr. Colley has a long history of issues with both his lumbar
spine and left shoulder. A December 3, 2009, lumbar x-ray showed degenerative changes and mild
loss of disc height at T12 and L1. The x-ray was performed for radiculopathy. On March 31, 2010,
a left shoulder x-ray showed degenerative left acromioclavicular joint disease. Mr. Colley
underwent a left shoulder MRI on April 19, 2010, which revealed subacromial/subdeltoid bursitis,
moderate peratendinopathy in the infraspinatus and supraspinatus tendons, no evidence of full
thickness tear, and cystic changes in the posterosuperior glenoid.
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Mr. Colley was treated at Dickenson Medical Associates on April 15, 2015, for a history
of bilateral shoulder pain, which had increased over the past two weeks in the left shoulder. He
was diagnosed with rotator cuff tendinitis with pain radiating into the elbow. It was noted that
there was a possibility of a small rotator cuff tear. A left shoulder MRI was performed on April
22, 2015, and showed no definite evidence of a rotator cuff tear but there was some edema, which
was suspicious for a tear. There was evidence of a strain injury as well as evidence of a chronic
labral tear.
Mr. Colley returned to Dickenson Medical Associates on April 29, 2015, and was
diagnosed with rotator cuff tendinitis. He was prescribed physical therapy and a cortisone
injection. An October 18, 2016, lumbar x-ray showed mild degenerative changes. On October 13,
2017, Mr. Colley was treated at Pikeville Medical Center for left shoulder pain that had been
present for six months. He was diagnosed with left shoulder bursitis. It was opined that the majority
of Mr. Colley’s pain was due to rotator cuff tendinopathy and bursitis. On October 31, 2017,
Dickenson Medical Associates indicated Mr. Colley’s condition remained the same, and he
continued to work. He was to be referred to orthopedics for shoulder pain.
Mr. Colley sustained the compensable injury on December 15, 2017. The Employees’ and
Physicians’ Report of Injury indicated Mr. Colley injured his low back and left shoulder. On
January 15, 2018, Roy Deel, M.D., from Dickenson Medical Associates, diagnosed lumbar
radiculopathy and left shoulder pain. On January 18, 2018, a left shoulder MRI showed a partial
thickness tear of the supraspinatus tendon, two small cysts on the inferior labrum, and degenerative
changes of the posterior labrum. A labral tear could not be excluded. A lumbar MRI showed mild
degenerative disc disease.
In a February 12, 2018, letter from the claims administrator, it was noted that Mr. Colley
reported a work-related injury on December 15, 2017. Mr. Colley had returned to work that day
after a disciplinary suspension from work. He was scheduled to meet with his supervisors before
beginning his shift, but he failed to appear at the meeting. Mr. Colley instead began his shift. He
alleged that he fell approximately two and a half hours into his shift, injuring his back and left
shoulder/arm. There were no witnesses and Mr. Colley had not returned to work. The claims
administrator noted that records from Dickenson Medical Associates indicate Mr. Colley had left
shoulder issues prior to the December 15, 2017, injury. Mr. Colley had a prior MRI with similar
pathologies and was referred to Dr. Varey for left shoulder pain in October of 2017. The claims
administrator requested an independent medical evaluation.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on March 6,
2018, in which he noted that Mr. Colley denied preexisting low back pain, but records showed
differently. Dr. Mukkamala found that Mr. Colley’s complaints were the result of preexisting
lumbar spondylosis, rotator cuff tendinosis, and glenohumeral joint arthrosis, which were
unrelated to the December 15, 2017, incident. Dr. Mukkamala opined that there is no objective
evidence to support Mr. Colley’s assertion that he was injured that day. He also found extreme
symptom magnification. Dr. Mukkamala stated that the mechanism of injury described by Mr.
Colley would result in no more than sprains or contusions.
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On November 2, 2018, the Office of Judges reversed the claims administrator’s rejection
of the claim and held the claim compensable for lumbar sprain and left shoulder sprain. The claim
was remanded to the claims administrator for determination of temporary total disability benefits.
In a December 18, 2018, letter to the employer, the claims administrator stated that the Board of
Review denied a request to stay temporary total disability benefits pending appeal of the November
2, 2018, decision. Temporary total disability benefits were granted from December 15, 2017,
through March 6, 2018, the date that Dr. Mukkamala found Mr. Colley had reached maximum
medical improvement. The claims administrator closed the claim for temporary total disability
benefits on December 18, 2018.
In a February 26, 2019, letter, Dr. Deel stated that Mr. Colley suffered an injury at work
that caused worsening of his back pain and resulted in new leg and shoulder pain. Mr. Colley
remained unable to return to work. The Board of Review affirmed the November 2, 2018, Office
of Judges’ Order holding the claim compensable for lumbar and left shoulder sprains on March
22, 2019. On April 3, 2019, Dickenson Medical Associates referred Mr. Colley to Blue Ridge
Ortho for left shoulder pain, low back pain, and lumbar radiculopathy.
The Office of Judges affirmed the claims administrator’s closure of the claim for temporary
total disability benefits in its July 29, 2019, Order. The Office of Judges stated that the claim has
been held compensable for lumbar sprain/strain and left shoulder sprain. Mr. Colley was granted
temporary total disability benefits from December 15, 2017, through March 6, 2018, at which time
Dr. Mukkamala found that he had reached maximum medical improvement for the compensable
injuries. Dr. Mukkamala found in his March 6, 2018, evaluation that the mechanism of injury could
have caused not more than sprain or contusion type injuries. The duration of care for a sprain is
zero to four weeks, not to exceed eight weeks. The Office of Judges noted that Mr. Colley was
seen by Dr. Deel prior to the compensable injury for back pain, and prior diagnostic imaging shows
degenerative changes in the lumbar spine. Prior imaging also shows degenerative changes in the
left shoulder. Mr. Colley was treated for left shoulder issues on October 13, 2017, approximately
two months prior to the work injury. It was noted at that time that the shoulder pain had been
present for six months. The Office of Judges concluded that Mr. Colley failed to show that he is
entitled to greater temporary total disability benefits than he has already received. Dr. Deel’s
February 26, 2019, letter stating that Mr. Colley was unable to return to work was found to be
unsupported by objective findings. The Office of Judges noted that Dr. Deel’s request for referral
to an orthopedic surgeon was not a legitimate basis to award temporary total disability benefits
because surgery is not appropriate treatment for a sprain. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on December
19, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. A preponderance of the evidence indicates Mr. Colley’s
continued inability to work is not the result of his compensable lumbar and left shoulder sprains.
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: March 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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