Lifepoint Hospitals, Inc. v. Jill Stone

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
LIFEPOINT HOSPITALS, INC., February 2, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-206 (JCN: 2021024861) OF WEST VIRGINIA

JILL STONE,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Lifepoint Hospitals, Inc., appeals the September 27, 2022, order of the
West Virginia Workers’ Compensation Board of Review (“Board”). Respondent Jill Stone
filed a timely response. 1 Petitioner did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s decision terminating 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 that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure, and a memorandum decision is appropriate
to reverse the matter for further proceedings consistent with this decision.

In April of 2021, Ms. Stone, an x-ray technician, was injured in the course of and
resulting from her employment at Lifepoint Hospital. 2 By order dated April 23, 2021, the
claim administrator held Ms. Stone’s workers’ compensation claim compensable for strain
of unspecified muscle, facia, and tendon at the left shoulder and upper arm level. Ms. Stone
was referred to J. Prudhomme, M.D., who performed a left shoulder arthroscopy with
repair of a large interior labral tear on June 17, 2021. Dr. Prudhomme took Ms. Stone off
work and instructed her to participate in physical therapy.

On September 8, 2021, Ms. Stone was seen by Jon Kline, PA-C, who worked in Dr.
Prudhomme’s office. Mr. Kline noted that Ms. Stone’s range of motion was fairly good,

Petitioner is represented by Jane Ann Pancake, Esq. and Jeffrey B. Brannon, Esq.
1

Respondent is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq.
2
Ms. Stone states that she was injured when she moved a patient to perform an x-
ray.

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although she did not have much strength. Mr. Kline opined that Ms. Stone could return to
work on September 13, 2021, so long as she was given light duty and was not permitted to
push, pull, or lift anything over twenty-five pounds. If light work were not available, Ms.
Stone was to remain off work for at least six more weeks pending further evaluation.

On September 15, 2021, Ms. Stone resigned from her position. On October 1, 2021,
the claim administrator suspended Ms. Stone’s temporary total disability (“TTD”) benefits,
instructing her that her TTD benefits would be closed in thirty days unless she submitted
evidence showing why the benefits should remain open.

Ms. Stone returned to see Dr. Prudhomme on October 27, 2021. In the clinical notes,
Dr. Prudhomme noted that Ms. Stone had resigned from her job “for a variety of reasons.”
Dr. Prudhomme recommended that Ms. Stone continue with physical therapy and noted
that she would not be able to perform her “regular” job duties. Dr. Prudhomme did not
address Ms. Stone’s ability to perform light duty. By order dated November 1, 2021, the
claim administrator closed the claim for TTD benefits after Ms. Stone failed to submit any
evidence demonstrating that TTD benefits should continue.

Subsequently, physical therapy progress notes from December of 2021 showed that
Ms. Stone’s range of motion and strength had regressed. The physical therapist indicated
that Ms. Stone should continue with physical therapy. On January 3, 2021, Ms. Stone saw
Dr. Prudhomme, who recommended that she continue with physical therapy and undergo
an EMG of her left upper extremity to rule out nerve root compression or other condition.
According to the Board’s order, Dr. Prudhomme indicated that Ms. Stone remained unable
to work. 3

By order dated September 27, 2022, the Board reversed the claim administrator’s
November 1, 2021, order and ordered that TTD benefits should continue through January
3, 2022, and for such other periods of time as are substantiated through the introduction of
credible medical evidence. The Board found that “[t]he record does not reflect that either
light duty was available or that the claimant returned to her former job as [an] x-ray
technician.” The Board found that Ms. Stone’s progress had been slow, that further
physical therapy had been recommended, and that Dr. Prudhomme indicated that she was
to remain off work as of January 3, 2022. The Board concluded that because Ms. Stone had
not reached maximum medical improvement and had not been released to “regular duty
employment,” she remained eligible to receive TTD benefits pursuant to West Virginia
Code § 23-4-6 (2005). The employer now appeals. By order of January 5, 2023, this Court
stayed the Board’s order pending appeal.

3
The January 3, 2022, medical note was not included in the appendix record on
appeal. By order entered on January 12, 2023, this Court, on its own motion, supplemented
the record to include the medical note.

2
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

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, No. 22-ICA-10, __W. Va. __, __, __S.E.2d __, __, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

On appeal, the employer argues that the Board erred in reversing the claim
administrator’s order and granting Ms. Stone TTD benefits through January 3, 2022, and
continuing thereafter as substantiated by medical evidence. The employer argues that Ms.
Stone bore the burden of demonstrating that she was entitled to further TTD benefits, and
she failed to do so. Ms. Stone was released to return to work with modified duties on
September 13, 2021. The employer avers that, according to the plain language of West
Virginia Code § 23-4-7a(e) (2005), Ms. Stone’s release to work terminated her entitlement
to TTD benefits, and the Board incorrectly interpreted the statute to mean that a claimant
has to be returned to full duty work in order for his or her entitlement to TTD benefits to
end.

According to the employer, the statute does not place qualifications on the return to
work. As such, the employer contends that the Board erred in finding that Ms. Stone’s
release to work on light duty was an insufficient basis for the claim administrator to
suspend and terminate her benefits. The employer further argues that the Board erred in
relying on Dr. Prudhomme’s January 3, 2022, medical records showing that Ms. Stone
needed to be off work as of that date. These are records for treatment received after the
claim administrator terminated TTD benefits on November 1, 2021. The records provided
to the claim administrator prior to November 1, 2021, show that Ms. Stone was able to
return to light duty, and there is no medical evidence that she was unable to work with
restrictions from September 13, 2021, through January 3, 2022. Based on the foregoing,

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the employer argues that the Board clearly erred in granting Ms. Stone further TTD
benefits.

We agree. West Virginia Code § 23-4-7a(a) and (e) provide as follows:

(a) The Legislature hereby finds and declares that injured claimants should
receive the type of treatment needed as promptly as possible; that
overpayments of benefits with the resultant hardship created by the
requirement of repayment should be minimized; and that to achieve these
two objectives it is essential that the commission establish and operate a
systematic program for the monitoring of injury claims where the disability
continues longer than might ordinarily be expected.

....

(e) Notwithstanding any provision in subsection (c) of this section, the
commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, shall enter a notice suspending
the payment of temporary total disability benefits but providing a reasonable
period of time during which the claimant may submit evidence justifying the
continued payment of temporary total disability benefits when:

(1) The physician or physicians selected by the commission
conclude that the claimant has reached his or her maximum
degree of improvement;

(2) When the authorized treating physician advises the
commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, that the
claimant has reached his or her maximum degree of
improvement or that he or she is ready for disability evaluation
and when the authorized treating physician has not made any
recommendation with respect to a permanent disability award
as provided in subsection (c) of this section;

(3) When other evidence submitted to the commission, successor
to the commission, other private carrier or self-insured
employer, whichever is applicable, justifies a finding that the
claimant has reached his or her maximum degree of
improvement; or

(4) When other evidence submitted or otherwise obtained justifies
a finding that the claimant has engaged or is engaging in abuse,

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including, but not limited to, physical activities inconsistent
with his or her compensable workers’ compensation injury.

In all cases, a finding by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, that the
claimant has reached his or her maximum degree of improvement terminates
the claimant’s entitlement to temporary total disability benefits regardless of
whether the claimant has been released to return to work. Under no
circumstances shall a claimant be entitled to receive temporary total
disability benefits either beyond the date the claimant is released to return
to work or beyond the date he or she actually returns to work.

(Emphasis added).

Here, the Board incorrectly found that Ms. Stone was entitled to TTD benefits
because she had not been released to regular duty. However, as shown above, West
Virginia Code § 23-4-7a(e) does not explicitly require that a release to work be a release
to a claimant’s regular duties, nor does it specifically preclude light or modified duty.
Following Mr. Kline’s note releasing Ms. Stone to return to work on modified duty, the
claim administrator issued a notice to Ms. Stone suspending benefits and informing her
that her TTD claim would be closed unless further evidence was presented. Ms. Stone
presented no such evidence. Further, no medical documentation following the claim
administrator’s November 1, 2022, order contradicts Mr. Kline’s opinion that Ms. Stone
could return to work on modified duty. Rather, the medical records indicate that Ms. Stone
could not return to her “regular” duties.

Moreover, in finding that there was no evidence that light duty was available, the
Board did not consider that it was Ms. Stone who resigned, precluding the employer from
offering her light duty. The record shows that Ms. Stone resigned two days after being
released to return to work on light duty, and there is no evidence that the employer had the
opportunity to offer or deny Ms. Stone light duty. Below, Ms. Stone bore the burden of
presenting evidence that she was wrongly denied TTD benefits and that she was denied
light duty work, but she failed to do so. Indeed, treatment notes from Dr. Prudhomme
demonstrate that Ms. Stone resigned for a “variety of reasons,” which fails to identify the
specific reasons and does not support a finding that a lack of light duty was why she
resigned. In sum, the fact that the applicable statute does not specify that a work release
must be for regular duties, coupled with the complete lack of evidence that the employer
denied Ms. Stone modified duties before her resignation, leads this Court to conclude that

5
the Board clearly erred in reversing the claim administrator’s order and granting Ms. Stone
TTD benefits through January 3, 2022. 4

Accordingly, we reverse the Board’s September 27, 2022, order.

Reversed.

ISSUED: February 2, 2023

CONCURRED IN BY:

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

4
We note that our holding does not preclude Ms. Stone from filing a petition to
reopen her claim for additional TTD benefits based upon credible medical evidence that
she was not able to work on modified duty following the claim administrator’s November
1, 2022, order.

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