ACNR Resources, Inc. v. Kevin Barnhart

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ACNR RESOURCES, INC., May 1, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-35 (JCN: 2021019311)

KEVIN BARNHART,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ACNR Resources, Inc.1 appeals the January 3, 2023, order of the West
Virginia Workers’ Compensation Board of Review (“Board”). Respondent Kevin Barnhart
filed a timely response.2 Petitioner did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s March 22, 2022, order denying
authorization for an MRI and its June 3, 2022, order denying the petition to reopen the
claim for 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.

On March 18, 2021, Mr. Barnhart sustained a work injury to his right foot and ankle
when he was caught between a lowered longwall roof shield and the relay bar used to move
the shield forward. The following day, Mr. Barnhart sought treatment at the emergency
department of Wheeling Hospital. Danny Fijalkowski, DPM, a podiatrist, examined Mr.
Barnhart and, after a physical exam and diagnostic testing, diagnosed him with a closed

1
For reasons not readily apparent in the appendix record, the parties have substituted
“Marshall County Coal Resources, Inc.” for the employer that was identified below as
“ACNR Resources, Inc.” Consistent with the action of the Supreme Court of Appeals of
West Virginia in Delbert v. Murray American Energy, Inc., __W. Va. __, __ n.1, 880
S.E.2d 89, 91 n.1 (2022), we use the name of the employer as designated in the order on
appeal: ACNR Resources, Inc.
2
Petitioner is represented by Aimee M. Stern, Esq. Respondent is represented by J.
Thomas Greene, Jr., Esq., and T. Colin Greene, Esq.

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nondisplaced fracture of the fourth metatarsal bone of the right foot, a closed nondisplaced
fracture of the cuboid of the right foot, and a closed nondisplaced fracture of the lateral
cuneiform of the right foot.

By order dated March 31, 2021, the claim administrator held the claim compensable
for a nondisplaced fracture of the lateral cuneiform of the right foot and a displaced fracture
of the fourth metatarsal bone of the right foot. Subsequent x-rays performed revealed some
mild osteoarthritis and degenerative calcaneal enthesophytes, and a June 8, 2021, MRI
demonstrated a fracture of the cuboid bone and potential subtle nondisplaced fracture at
the fifth metatarsal head of the right foot.

Medical records from April of 2021, June of 2021, and July of 2021 indicate that
Mr. Barnhart continued to experience swelling in his foot but reported that his pain was
improving. He was instructed to remain off work and to participate in physical therapy. On
August 23, 2021, Mr. Barnhart underwent an independent medical evaluation (“IME”)
performed by Prasadarao Mukkamala, M.D. Dr. Mukkamala opined that Mr. Barnhart had
not reached maximum medical improvement (“MMI”) but needed no further treatment
other than a vitamin D3 supplement that Dr. Fijalkowski had previously prescribed. Dr.
Mukkamala indicated his belief that Mr. Barnhart would reach MMI in one to two months.

Treatment records from September of 2021 indicate that Mr. Barnhart reported
instability and weakness in his right foot while walking but that he was able to wear regular
tennis shoes. He was to remain off work at that time. Subsequently, in October of 2021,
Dr. Mukkamala, without having reevaluated Mr. Barnhart, issued an addendum report
concluding that Mr. Barnhart had reached MMI and assigning him a 5% whole person
impairment rating. In accordance with Dr. Mukkamala’s report, the claim administrator
suspended Mr. Barnhart’s TTD benefits on November 2, 2021.

On November 22, 2021, Dr. Fijalkowski examined Mr. Barnhart and recommended
a slow, gradual progression to shoe gear and activity. He directed Mr. Barnhart to continue
with the vitamin D supplement and indicated that he was considering requesting a repeat
CT scan. Dr. Fijalkowski did not indicate that Mr. Barnhart could return to work at that
time. The claim administrator closed Mr. Barnhart’s claim for TTD benefits on December
13, 2021.

Subsequently, on January 24, 2022, Dr. Fijalkowski informed Mr. Barnhart that he
could return to work without restrictions on January 31, 2022. Mr. Barnhart returned to
work but presented to Dr. Fijalkowski on March 15, 2022, with complaints of pain. X-rays
performed of Mr. Barnhart’s right foot and ankle did not reveal the presence of any
fractures. Dr. Fijalkowski indicated that he would request an MRI of Mr. Barnhart’s foot
and ankle and instructed him that he was not to work until cleared.

2
Without reevaluating Mr. Barnhart, Dr. Mukkamala issued a supplemental report
on March 21, 2022, stating that, based upon his review of additional medical records, he
still believed Mr. Barnhart had reached MMI and was not temporarily and totally disabled.
On March 22, 2022, the claim administrator denied authorization for an MRI of Mr.
Barnhart’s right foot and ankle. On May 23, 2022, Mr. Barnhart filed a petition to reopen
his claim for TTD benefits from March 15, 2022, through June 15, 2022. Dr. Fijalkowski
completed the physician’s portion of the application and indicated that Mr. Barnhart was
having pain and swelling in his foot, and requested an MRI. Dr. Fijalkowski further noted
that Mr. Barnhart was unable to continue working. On June 3, 2022, the claim administrator
denied Mr. Barnhart’s petition to reopen his claim for TTD benefits. Mr. Barnhart later
testified via deposition in July of 2022, stating that he returned to work per Dr.
Fijalkowski’s January 24, 2022, return-to-work notice but had experienced difficulty with
his right foot and ankle. Specifically, he reported that his right foot and ankle were stiff,
swollen, and painful. On cross-examination, Mr. Barnhart admitted that he had never
regained full range of motion in his foot prior to returning to work.

On January 3, 2023, the Board issued an order reversing the claim administrator’s
March 22, 2022, order denying authorization for an MRI and June 3, 2022, order denying
the petition to reopen the claim for TTD benefits.3 The Board noted that Dr. Mukkamala
had examined Mr. Barnhart on only one occasion and had issued his subsequent reports
without having reevaluated Mr. Barnhart nor reviewed his current medical records, while,
in contrast, Dr. Fijalkowski had examined Mr. Barnhart on multiple occasions and had
examined him more recently, about seven months after Dr. Mukkamala’s examination. The
Board further noted that Mr. Barnhart returned to work in January of 2022, but was unable
to continue working after March 15, 2022, due to pain and swelling in his right foot. The
Board determined that a preponderance of the medical evidence demonstrated that Mr.
Barnhart had sustained an aggravation or progression of his compensable injury resulting
in temporary and total disability, justifying reopening the claim for TTD benefits.
Furthermore, the Board noted that Dr. Fijalkowski had requested the MRI in an attempt to
discover why Mr. Barnhart’s symptoms had returned and that his request for an MRI was
reasonable, necessary, and related to the treatment of the compensable injury. ACNR
Resources now appeals the Board’s order reversing these two orders from the claim
administrator.

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

3
The Board specifically held that the claim was reopened for TTD benefits from
March 15, 2022, through June 15, 2022, and continuing thereafter as supported by proper
medical evidence.
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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, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, ACNR Resources argues that the Board erred in reversing the claim
administrator’s orders denying authorization for a repeat MRI and denying the petition to
reopen the claim for TTD benefits. According to ACNR Resources, when Dr. Fijalkowski
examined Mr. Barnhart in March of 2022, all of his objective findings were normal, x-rays
revealed no acute findings, and Mr. Barnhart reported no complaints of pain with passive
range of motion testing. ACNR Resources further notes that Mr. Barnhart’s complaints
from November of 2021 through March of 2022 were largely the same, indicating that no
change had occurred. As such, ACNR Resources concludes that there is no evidence
demonstrating an aggravation or progression of his compensable injury since being
released to work and, therefore, the claim administrator properly denied the petition to
reopen TTD benefits. Moreover, given the normal findings upon examination and x-rays,
ACNR Resources contends that there was no indication that a repeat MRI was necessary.

Upon our review, we find that the Board was not clearly wrong in reversing the
claim administrator’s orders. In order to reopen a claim for TTD benefits, a claimant must
show an aggravation or progression of a compensable condition or facts not previously
considered. See W. Va. Code §§ 23-5-2 (2005), 23-5-3 (2021). Here, Dr. Fijalkowski
examined Mr. Barnhart on January 24, 2022, and determined that he had reached MMI and
could return to work. After returning to work, Mr. Barnhart’s symptoms returned and
prevented him from continuing to work. The Board found that this evidence was sufficient
to support that an aggravation or progression of Mr. Barnhart’s compensable injury had
occurred, justifying the reopening of the claim for TTD benefits, and we find no clear error
in that decision. Additionally, pursuant to West Virginia Code § 23-4-3 (2005), a claim
administrator must provide medically related and reasonably required treatment for all
compensable conditions. In this case, Dr. Fijalkowski performed a physical exam and
ordered x-rays in order to determine the basis of Mr. Barnhart’s renewed complaints and
could not find one. As such, he concluded that he needed a repeat MRI of Mr. Barnhart’s
foot and ankle so that he could adequately diagnose and treat the injury. The Board found

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that, under these circumstances, a repeat MRI was reasonable, necessary, and related to the
treatment of the compensable injury. We agree.

For the foregoing reasons, we find that the Board’s decision is not in violation of
any statutory provision, nor clearly wrong in light of the evidence, nor characterized by an
abuse of discretion. Therefore, we affirm the Board’s January 3, 2023, order.

Affirmed.

ISSUED: May 1, 2023

CONCURRED IN BY:

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

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