Virley Ferguson v. Cabell County Board of Education

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS
FILED
VIRLEY FERGUSON, March 30, 2017

Claimant Below, Petitioner RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 16-0478 (BOR Appeal No. 2051056)
(Claim No. 2015011830)

CABELL COUNTY BOARD OF EDUCATION,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Virley Ferguson, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The Cabell County Board of Education, by Jillian Moore, its
attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 3, 2016, in which
the Board affirmed a January 21, 2016, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 2, 2015, decision
closing Ms. Ferguson’s claim for workers’ compensation benefits on a temporary total disability
basis. 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. Ferguson injured her lower back on October 6, 2014, while lifting a box and her
claim for workers’ compensation benefits was subsequently held compensable for a lumbar
sprain/strain. Following the injury, she received temporary total disability benefits. She also
underwent a course of physical therapy. On October 28, 2014, a lumbar spine MRI was
performed and revealed mild degenerative disc space narrowing at L4-5 with minimal anterior
degenerative listhesis associated with facet joint osteoarthrosis.

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 On January 5, 2015, Syam Stoll, M.D., Ms. Ferguson’s treating physician, examined her
amid continued complaints of lumbar pain. Dr. Stoll opined that his physical examination and
review of diagnostic imaging did not reveal any acute findings. He also noted that the treatment
which Ms. Ferguson has received to date has extended well beyond the treatment guidelines for
the compensable lumbar sprain contained within West Virginia Code of State Rules § 85-20
(2006). He then recommended that Ms. Ferguson return to work at modified duty. On January
13, 2015, Ms. Ferguson was released to return to work.

Prasadarao Mukkamala, M.D., performed an independent medical evaluation on February
18, 2015, and authored a report memorializing his findings on February 19, 2015. Dr.
Mukkamala noted that Ms. Ferguson complained of radiating lower back pain. He then opined
that she has reached maximum medical improvement with respect to the compensable lumbar
sprain. An EMG performed on February 26, 2015, confirmed the presence of bilateral lumbar
radiculopathy.

On March 2, 2015, the claims administrator closed Ms. Ferguson’s claim on a temporary
total disability basis. In its Order affirming the March 2, 2015, claims administrator’s decision,
the Office of Judges held that the claims administrator properly closed the claim for temporary
total disability benefits. The Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision dated May 3, 2016.

West Virginia Code § 23-4-7a (2005), provides that temporary total disability benefits are
not payable after a claimant has reached maximum medical improvement, is released to return to
work, or actually returns to work, whichever occurs first. As was noted by the Office of Judges,
Ms. Ferguson was released to return to work by her treating physician on January 13, 2015, and
Dr. Mukkamala found that she had reached maximum medical improvement on February 18,
2015. Therefore, pursuant to the provisions of West Virginia Code § 23-4-7a, Ms. Ferguson is no
longer eligible to receive temporary total disability benefits and the claims administrator properly
closed the claim on a temporary total disability basis in its March 2, 2015, decision.

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.

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ISSUED: March 30, 2017

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

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