Beckley Appalachian Reg'l Healthcare v. Levin

• Court: Virginia Court of Appeals
• Decision Date: 15 November 2022
• Docket Number: 22-ICA-31
• Citation: Beckley Appalachian Reg'l Healthcare v. Levin, 22-ICA-31 (Va. App. Nov 15, 2022)
• Parties: BECKLEY APPALACHIAN REGIONAL HEALTHCARE, Employer Below, Petitioner, v. BARRY LEVIN, Claimant Below, Respondent

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BECKLEY APPALACHIAN REGIONAL HEALTHCARE, Employer Below, Petitioner, v. BARRY LEVIN, Claimant Below, Respondent

No. 22-ICA-31

Intermediate Court of Appeals of West Virginia

November 15, 2022

(JCN 2021010291)

MEMORANDUM DECISION

Petitioner Beckley Appalachian Regional Healthcare ("BARH") appeals the July 13, 2022, decision of the West Virginia Workers' Compensation Board of Review ("Board"). Respondent Barry Levin filed a timely response.^[1] Petitioner did not file a reply brief. The issue on appeal is whether the Board erred in reversing the claim administrator's order and in reinstating temporary total disability ("TTD") benefits.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4 (2022). After considering the parties' arguments, the record on appeal, and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons a memorandum decision affirming the Board's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Dr Levin, an orthopedic surgeon, contracted Covid-19 during the course of his employment as he treated patients.^[2] He stopped working on July 31, 2020, when he was hospitalized for several weeks as a result of severe Covid-related pneumonia with acute respiratory failure and placed on a ventilator, among other complications. On August 20, 2020, he was discharged to a rehabilitation facility for another nineteen days where he was treated for a variety of additional diagnoses, including but not limited to severe weakness, muscle atrophy, poor endurance, chronic pain, new onset of dyspnea, and hypoxia. He was discharged home with occupational therapy, physical therapy, as well as nursing and other home health services. On January 14, 2021, his claim was held compensable for "Covid-19, Virus Identified Is Assigned to a Disease Diagnosis of Covid-19 Confirmed by Laboratory Testing."

On September 17, 2021, Dr. Levin underwent an independent medical examination ("IME") by Joseph Grady, M.D. who noted that Dr. Levin's original course of Covid-19 was more respiratory and, to a lesser degree, cardiac, and both had improved. At the time of the IME, Dr. Levin's chief complaint involved his lower extremities, including weakness and fatigue while standing and walking. Dr. Grady noted that Dr. Levin's medical records revealed a history of peripheral vascular disease. He noted that Dr. Levin's fatigue could be reasonably associated with the Covid-19 infection as "long Covid" but felt that it may be "superimposed" upon the known peripheral vascular disease. Dr. Grady opined that Dr. Levin no longer had an active Covid-19 infection and found him to be at maximum medical improvement.^[3] On that basis, the claim administrator suspended the claim for TTD benefits on September 21, 2021 and then closed the claim on October 29, 2021.

Dr Levin protested the decision and submitted additional evidence, including medical records describing treatment he received for his ongoing Covid-19 related symptoms from February 2, 2021, through February 24, 2022, which documented severe dyspnea on exertion, post Covid cough, and that he was unable to return to work due to his inability to take orthopedic calls and stand for surgery. As of February 2022, Dr. Levin still had a "slow tentative pace and felt unsteady when standing or walking" and was referred to physical therapy to improve his gait, strength, and balance. His treating physician, Richard Wisman, M.D., stated that he "had severe covid pneumonia in Aug 2020-was on mechanical ventilation for over a week-had a long rehab stint and has been left with residual dyspnea, weakness especially of legs and fatigue-was unable to rtw [return to work] as a staff orthopedic surgeon-he continues to improve by increments and I do not feel that [claimant] has reached maximum medical improvement as of yet as he suffers from long haul covid." Attending Physician's Reports dated February 2, 2021, through August 16, 2021, also indicated that Dr. Levin was not at maximum medical improvement and was disabled for an unknown period starting August 1, 2020.

The Board considered the additional evidence and found that as of October 29, 2021, Dr. Levin had neither returned to work, nor had he been released to work. Moreover, it found that the only evidence indicating that he had reached maximum medical improvement was Dr. Grady's opinion, which was undercut by his admission that Dr. Levin's fatigue could reasonably be associated with long Covid, and that the maximum improvement applied only to the active Covid-19 infection, not to the extended sequelae or long Covid symptoms. Additionally, Dr. Wisman's records demonstrate that Dr. Levin was not able to return to work, was not at maximum medical improvement, and was still improving. As a result, the Board found that the evidence of record indicated that Dr Levin's fatigue was related to his compensable condition, that it caused him to be unable to perform his job duties, and that his condition was improving. The Board therefore reversed the claim administrator's order closing the claim for TTD benefits and ordered that TTD benefits continue to be paid from the date they were...