Buzzard v. W. Va. Office of Ins. Comm'r

• Court: West Virginia Supreme Court
• Writing for the Court: Chief Justice Menis E. Ketchum Justice Robin J. Davis Justice Margaret L. Workman Justice Allen H. Loughry II
• Decision Date: 24 June 2016
• Docket Number: No. 15-0771,15-0771
• Citation: Buzzard v. W. Va. Office of Ins. Comm'r, No. 15-0771 (W. Va. Jun 24, 2016)
• Parties: BRUCE A. BUZZARD, Claimant Below, Petitioner v. WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and PRINCESS BEVERLY COAL COMPANY, Employer Below, Respondent

BRUCE A. BUZZARD, Claimant Below, Petitioner v. WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, RespondentandPRINCESS BEVERLY COAL COMPANY, Employer Below, Respondent

No. 15-0771

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 24, 2016

(BOR Appeal No. 2050178)

(Claim No. 2010131208)

MEMORANDUM DECISION

Petitioner Bruce A. Buzzard, by John H. Shumate Jr, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by Patrick Morrisey and Brandolyn Felton-Ernest, its attorney, filed a timely response.

This appeal arises from the Board of Review's Final Order dated July 10, 2015, in which the Board reversed a January 8, 2015, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges reversed the claims administrator's August 21, 2014, decision which denied a request to reopen the claim for temporary total disability benefits. The Office of Judges granted temporary total disability benefits from February 24, 2014, through March 19, 2014. In its Order, the Office of Judge also dismissed as moot the claims administrator's February 25, 2014, decision denying a request to reopen 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.

Mr. Buzzard, an equipment operator, injured his neck and shoulder in the course of his employment on March 19, 1999. As a result of his employment, he also developed bilateral carpal tunnel syndrome which was added to the claim on April 22, 2013, following a memorandum decision from this Court.¹ In a January 6, 2010, treatment note, Paul Oar, M.D., stated that Mr. Buzzard had bilateral hand numbness and chronic neck pain. It was noted that he suffered a work-related neck injury in March of 1999 and had been disabled since that day. An employee's and physician's report of injury completed on March 1, 2010, states that Mr. Buzzard suffered bilateral carpal tunnel syndrome. His date of last exposure was listed as March 19, 1999.

Mr. Buzzard filed a claim reopening application on May 21, 2013, stating that he was seeking to reopen his claim based on new facts not previously considered, specifically this Court's March 14, 2013, decision holding the claim compensable for bilateral carpal tunnel syndrome. Mr. Buzzard indicated on the form that he was retired. Dr. Oar completed the physician's section and certified Mr. Buzzard as temporarily and totally disabled from March 19, 1999, to the present. The claims administrator denied the request for temporary total disability benefits on February 25, 2014.

Mr. Buzzard was treated by Scott Ciaccia, D.O., from August of 2013 through April of 2014. On August 9, 2013, Dr. Ciaccia noted that Mr. Buzzard reported numbness and tingling in both arms since a 1999 work place injury. Mr. Buzzard stated to Dr. Ciaccia that he was informed by a surgeon that he needed neck surgery. Dr. Ciaccia diagnosed bilateral carpal tunnel syndrome with left cubital tunnel syndrome and possible cervical radiculopathy. A left carpal tunnel release surgery was performed on February 24, 2014. On April 15, 2014, it was noted that the surgery failed.

In a claim reopening application on March 4, 2014, Mr. Buzzard requested temporary total disability benefits from February 24, 2014, through March 19, 2014. Mr. Buzzard indicated on the application that he stopped working on March 19, 1999, due to a work-related injury and was receiving social security disability benefits. In an attending physician's benefits form, Dr. Oar stated that Mr. Buzzard would never return to work. He had reached maximum medical improvement and was ready for a permanent partial disability rating. The period of disability was listed from August 9, 2013, through April 15, 2014. In a corrected order, the claims administrator again denied the request to reopening the claim for temporary total disability benefits on August 21, 2014.

In its January 8, 2015, Order, the Office of Judges reversed the claims administrator's August 21, 2014, decision and granted Mr. Buzzard temporary total disability benefits from February 24, 2014, through March 19, 2014. The Office of Judges also dismissed the claims administrator's February 25, 2014, decision as moot. The Office of Judges first determined that the February 25, 2014, claims administrator's decision was rendered moot by the subsequent corrected August 21, 2014, decision.

The Office of Judges next determined that, based upon the evidence of record, Mr. Buzzard's request does not appear to truly be a reopening issue. The Office of Judges found that the claim was held compensable for bilateral carpal tunnel syndrome on April 15, 2011, by the Office of Judges, and the decision was subsequently affirmed by this Court. The Office of Judges' April 15, 2011, Order also stated that temporary total disability benefits were to be paid as established by appropriate medical evidence. The Office of Judges found in the instant case that temporary total...