Below v. Cabela's, Inc.

Decision Date18 October 2022
Docket Number21-0430
PartiesLISA GIBSON, Claimant Below, Petitioner v. CABELA'S, INC., Employer Below, Respondent
CourtSupreme Court of West Virginia
MEMORANDUM DECISION

Petitioner Lisa Gibson, by Counsel William Gallagher, appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). Cabela's, Inc. by Counsel T Jonathan Cook, filed a timely response.

The issue on appeal is the reopening of the claim for temporary total disability benefits. The claims administrator denied a reopening of the claim for temporary total disability benefits on October 22, 2020. On December 12, 2019, the Workers' Compensation Office of Judges ("Office of Judges") affirmed the claims administrator's decision. This appeal arises from the Board of Review's Order dated April 22, 2021, in which the Board affirmed the Order of the Office of Judges.

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.

The standard of review applicable to this Court's consideration of workers' compensation appeals has been set out under West Virginia Code § 23-5-15, in relevant part, as follows:

(c) In reviewing a decision of the Board of Review, the Supreme Court of Appeals shall consider the record provided by the board and give deference to the board's findings reasoning, and conclusions . . . .
(d) If the decision of the board represents an affirmation of a prior ruling by both the commission and the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record. The court may not conduct a de novo reweighing of the evidentiary record . . . .

See Hammons v. W.Va. Off. of Ins. Comm'r, 235 W.Va. 577, 582-83, 775 S.E.2d 458, 463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the context of decisions issued by the Board. See also Davies v. W.Va. Off. of Ins. Comm'r, 227 W.Va. 330, 334, 708 S.E.2d 524, 528 (2011).

Ms. Gibson, a warehouse worker, signed a Report of Injury form on February 13, 2018, alleging she sustained an injury on February 12, 2018, when she was packing bricks of ammo and putting them on a belt. The physician's portion of the application was completed by staff at MedExpress, where she was diagnosed with right shoulder and bilateral thigh strains.

Ms. Gibson underwent an Independent Medical Evaluation with Victoria Langa, M.D., on December 3, 2018, for the listed conditions of status post right rotator cuff repair and sprain/strain of the bilateral hips. Dr. Langa's examination of the lower back revealed tenderness over the lower lumbar midline and bilaterally over the posterior superior iliac spine, the sacroiliac joints, the sciatic notches, and the greater trochanters. It was noted that she also complained of tenderness upon palpation of the left groin. Straight leg raising was said to be uncomfortable bilaterally at 90 degrees with hamstring tightness/pulling but no radicular symptomatology. There were no motor or sensory changes found in the lower extremities. It was Dr. Langa's opinion that she had reached maximum medical improvement for the bilateral hip sprains/strains and has basically recovered from the bilateral soft tissue injuries. Dr. Langa further stated that her ongoing issues appear to be arising from her lower back.

The claims administrator issued an Order dated March 14, 2019, to provide an updated list of the compensable conditions in the claim, which included sprain of the right shoulder joint, a complete rotator cuff tear or rupture, other sprain of the right hip, other sprain of the left hip, and sprain of the lumbar spine and pelvis. The list of conditions was issued to correct the previous Orders in the claim. Ms. Gibson did not protest the claims administrator's decision.

On April 17, 2019, a medical record of Marjorie Proffitt, CRNP, with a family medicine group, shows that Ms. Gibson complained of low back pain that radiated down into her left hip, left leg, right hip, and groin. On examination, Ms. Proffitt noted that she had negative straight leg testing bilaterally. Ms. Gibson was diagnosed with radiculopathy of the lumbar region. Ms. Proffitt recommended that she continue with physical therapy for a couple of weeks and undergo a lumbar MRI.

The claims administrator issued an Order dated April 24, 2019, suspending the claim for temporary total disability benefits stating that it had not received evidence indicating that Ms. Gibson continued to be disabled. The claims administrator also stated that the last medical report it received was from Dante Marra, M.D., dated April 15, 2019, which released her to modified duty. The claim was closed for temporary total disability benefits by Order of the claims administrator dated May 23, 2019. Ms. Gibson protested the claims administrator's decision to close the claim.

A lumbar spine MRI performed on September 27, 2019, was interpreted to show diffuse lumbar disc desiccation and mild multilevel disc space narrowing. However, there was no evidence of a lumbar spine compression deformity. The final impression found no disc herniation or spinal stenosis. The MRI did reveal lower lumbar facet hypertrophy with spondylotic changes.

Ms Gibson completed a "BrickStreet" Claim Reopening Application for Temporary Total Disability Benefits on November 15, 2019, indicating that she had sustained an aggravation or progression of the compensable injury. The physician's portion of the form was completed by Derek Golna, D.O., at MedExpress. Dr. Golna noted that he examined Ms. Gibson on November 3, 2019, and diagnosed her with lumbosacral radiculopathy and sprain of the lumber spine and pelvis. Dr. Golna indicated that Ms. Gibson had sustained an aggravation or progression of the compensable injury. He recommended an EMG and a neurosurgical consultation. The request for authorization for a neurology consultation and EMG was denied by the claims administrator on November 18, 2019, as the...

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