Ervin C. Caldwell v. Health Team Critical Care Transport, LLC

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

                                                                             FILED
ERVIN C. CALDWELL,                                                      December 27, 2023
Claimant Below, Petitioner                                                EDYTHE NASH GAISER, CLERK
                                                                        INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-347         (JCN: 2020016417)                                  OF WEST VIRGINIA




HEALTH TEAM CRITICAL CARE TRANSPORT, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Ervin C. Caldwell appeals the July 5, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Health Team Critical Care
Transport, LLC (“HTCCT”) filed a response.1 Mr. Caldwell filed a reply. The issue on
appeal is whether the Board erred in affirming the claim administrator’s orders, which
closed the claim for temporary total disability (“TTD”) benefits and denied authorization
for sacroiliac injections and additional physical therapy.

       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.

        On December 26, 2019, while working for HTCCT, Mr. Caldwell suffered an injury
to his low back when he attempted to stop a patient from falling during a transfer. Mr.
Caldwell reported that he felt a popping and burning sensation followed by immediate pain.
On the same day, Mr. Caldwell was seen in the emergency department at Charleston Area
Medical Center. The claim administrator issued an order dated January 7, 2020, holding
the claim compensable for lumbar strain.

      Mr. Caldwell began treating with James Harman, D.O., a neurosurgeon, on January
8, 2020. Mr. Caldwell reported low back pain radiating down his left leg. Based on his
symptoms, Dr. Harman indicated that Mr. Caldwell may be suffering from sacroiliitis. Mr.
Caldwell began physical therapy on January 17, 2020.


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         Mr. Caldwell is represented by James D. McQueen, Jr., Esq. HTCCT is
represented by Jane Ann Pancake, Esq., and Jeffrey B. Brannon, Esq.

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        On February 13, 2020, Mr. Caldwell underwent an MRI of the lumbar spine,
revealing mild to moderate degenerative disc disease at L5-S1, with a mild central disc
bulge. Mr. Caldwell followed up with Dr. Harman on February 14, 2020. Mr. Caldwell
indicated that the physical therapy had decreased his pain. Dr. Harman opined that
sacroiliitis was the “most likely” diagnosis and requested authorization for sacroiliac
injections and additional physical therapy for the treatment of sacroiliitis. 2

       Mr. Caldwell was evaluated by Prasadarao Mukkamala, M.D., on December 1,
2020. Mr. Caldwell reported low back pain radiating down his left leg. Dr. Mukkamala
disagreed with Dr. Harman’s diagnosis of sacroiliitis and stated that there is no credible
medical evidence to diagnose sacroiliitis. Dr. Mukkamala explained that the low back pain
could explain the sacroiliac joint symptoms, as the symptoms overlap. Dr. Mukkamala
opined that Mr. Caldwell had not reached maximum medical improvement (“MMI”) for
his compensable injury. On May 4, 2021, Mr. Caldwell was reevaluated by Dr.
Mukkamala. Dr. Mukkamala reiterated that he did not believe that sacroiliitis should be a
compensable condition in this claim because there was no evidence of sacroiliitis clinically
or radiologically. Further, Dr. Mukkamala opined that Mr. Caldwell had reached MMI for
lumbar strain, that he could return to work with no restrictions, and that he required no
further medical treatment.

        On March 15, 2021, the claim administrator issued an order closing the claim for
TTD benefits as of March 2, 2021. On May 28, 2021, the claim administrator issued an
order, which denied authorization for sacroiliac injections based on Dr. Mukkamala’s May
4, 2021, report. On August 18, 2021, the claim administrator issued an order, which denied
authorization for additional physical therapy based on Dr. Mukkamala’s May 4, 2021,
report. Mr. Caldwell protested these orders.

        Mr. Caldwell was evaluated by Bruce Guberman, M.D., on December 7, 2022. Mr.
Caldwell reported low back pain radiating down his left leg, with numbness and weakness
in his left leg. Dr. Guberman diagnosed Mr. Caldwell with post-traumatic sacroiliitis on
the left side. Dr. Guberman opined that Mr. Caldwell was not at MMI and recommended a
left sacroiliac joint fusion.

        On July 5, 2023, the Board issued an order affirming the claim administrator’s
orders, which closed the claim for TTD benefits and denied authorization for sacroiliac
injections and additional physical therapy. Mr. Caldwell now appeals the Board’s order.

        Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

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         Mr. Caldwell alleges that the claim administrator authorized sacroiliac injections
twice, and both times the injections were unable to be scheduled due to COVID-19. The
alleged orders authorizing sacroiliac injections were not submitted to this Court.
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       The Intermediate Court of Appeals may affirm the order or decision of the
       Workers’ Compensation Board of Review or remand the case for further
       proceedings. It shall reverse, vacate, or modify the order or decision of the
       Workers’ Compensation Board of Review, if the substantial rights of the
       petitioner or petitioners have been prejudiced because the Board of Review’s
       findings are:
       (1) In violation of statutory provisions;
       (2) In excess of the statutory authority or jurisdiction of the Board of Review;
       (3) Made upon unlawful procedures;
       (4) Affected by other error of law;
       (5) Clearly wrong in view of the reliable, probative, and substantial evidence
       on the whole record; or
       (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 

, 555, 

, 921 (Ct. App.
2022).

       On appeal, Mr. Caldwell’s counsel makes several convoluted arguments that are
summarized as follows. First, Mr. Caldwell argues that the Board erred in affirming the
closure of TTD when Mr. Caldwell was not found to be at MMI for sacroiliitis. Mr.
Caldwell also argues that the Board erred by not determining that sacroiliitis is a
compensable condition. Further, Mr. Caldwell argues that the fact that prior treatment for
sacroiliitis was authorized by the claim administrator and the fact that Dr. Mukkamala
referred to sacroiliitis as a compensable condition in his reports establish that sacroiliitis is
a compensable condition. Finally, Mr. Caldwell argues that, because sacroiliitis either is or
should be found to be a compensable condition, the requested sacroiliac injections and
additional physical therapy should be authorized. We disagree.

       Here, the Board found that Mr. Caldwell was at MMI for the only compensable
condition in this claim, lumbar strain, based on the May 4, 2021, report of Dr. Mukkamala.
Thus, the Board affirmed the closure of TTD benefits based on that report. The Board
modified the claim administrator’s March 15, 2021, order to reflect that the TTD closure
date was March 15, 2021. The Board also found that sacroiliac injections and additional
physical therapy were not reasonably required and medically necessary for the treatment
of the only compensable condition in this claim, lumbar strain. The Board noted that the
treatment had been requested for sacroiliitis, which is not a compensable condition in this
claim, rather than lumbar strain. Further, the Board found that any prior treatment for
sacroiliitis was authorized under West Virginia Code of State Rules § 85-20-21 (2006),
which provides;



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       The Commission, Insurance Commissioner, private carrier or self-insured
       employer, whichever is applicable, may pay for treatment of a condition
       which was not caused by the injury only if the Commission, Insurance
       Commissioner, private carrier or self-insured employer, whichever is
       applicable, determines, in its sole discretion, that the unrelated condition is
       preventing recovery by aggravating the occupational injury.

       Upon review, we conclude that the Board was not clearly wrong in determining that
Mr. Caldwell was at MMI based on the May 4, 2021, report of Dr. Mukkamala and
affirming the closure of TTD benefits based on that report. While the claim administrator
appears to have made the initial decision to suspend TTD benefits in this claim based on
the December 1, 2020, report from Dr. Mukkamala (in which Mr. Caldwell had not actually
been found to be at MMI), that does not change the fact that Mr. Caldwell was re-evaluated
by Dr. Mukkamala on May 4, 2021, and found to be at MMI. The claim administrator’s
order of May 28, 2021, closing the claim for TTD benefits was based on Dr. Mukkamala’s
May 4, 2021, report. Further, no evidence was submitted to the Board demonstrating that
Mr. Caldwell continued to be temporarily and totally disabled after May 15, 2021.

        We find that the Board was not clearly wrong in determining that sacroiliac
injections and additional physical therapy were not reasonably required and medically
necessary for the treatment of the compensable condition in this claim, which is limited to
lumbar strain. Further, the Board was not clearly wrong in finding that the evidence
established that sacroiliac injections were requested for a non-compensable condition.
While Mr. Caldwell argues that the claim administrator previously authorized treatment
for sacroiliitis, HTCCT asserts that the treatment was authorized under West Virginia Code
of State Rules § 85-20-21. Under § 85-20-21, a claim administrator can authorize treatment
for a noncompensable condition if it is preventing the compensable injury from healing.
The Board was not clearly wrong in finding that Mr. Caldwell failed to refute that previous
treatment for sacroiliitis was authorized under § 85-20-21. Further, we do not find that the
claim administrator is required to continue to authorize treatment for a noncompensable
condition after the claimant has reached MMI for the compensable injury.

       We do not find merit in Mr. Caldwell’s argument that “the issue squarely before the
Board” was whether sacroiliitis should be a compensable condition in this claim.
Compensability of sacroiliitis simply was not the issue before the Board; the issue was
authorization of treatment for sacroiliitis, which is not a compensable condition in this
claim. We find that the Board was not clearly wrong in determining that the fact that Dr.
Mukkamala mistakenly referred to sacroiliitis as a compensable condition is not sufficient
evidence that the condition is compensable. Further, there is no evidence indicating that
Mr. Caldwell has ever requested that sacroiliitis be added to the claim as a compensable
condition.

       Accordingly, we affirm the Board’s July 5, 2023, order.
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                                   Affirmed.

ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr




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