Andrew J. Malnick v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ANDREW J. MALNICK, January 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-59 (JCN: 2019015209) OF WEST VIRGINIA

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Andrew J. Malnick appeals the July 28, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent ACNR Resources, Inc., filed a
timely response. 1 Petitioner did not file a reply brief. The issue on appeal is whether the
Board erred in affirming the claim administrator’s order closing the claim for temporary
total disability (“TTD”) benefits. 2

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 January 16, 2019, Mr. Malnick was injured while working for ACNR Resources,
Inc. when he was struck by a boulder. He became pinned to a piece of machinery in a
backward folded position. 3 He filed a workers’ compensation claim and on February 6,
2019, the claim administrator held the claim compensable for an unspecified injury of the
head, a contusion of the left knee, and an unspecified injury of the lower back.

Petitioner is represented by J. Thomas Greene, Jr. Esq. and T. Colin Greene, Esq.
1

Respondent is represented by Aimee M. Stern, Esq.

Mr. Malnick filed a separate appeal regarding medical treatment. See Malnick v.
2

ACNR Resources, Inc., No. 22-ICA-137.
3
Most of the facts about the accident were gleaned from documents in the parties’
appendices. The documents were submitted into the record below, but were not discussed
adequately, or at all, in the Board’s order. Where possible, the Board should include in its
order the facts about the injury as they are foundational to all issues in a claim.
1
Mr. Malnick had a prior history of low back symptoms and treatment dating back
to at least 2016. The Employee’s and Physician’s Report of Occupational Injury or Disease,
the WC-1 form, indicated that the occupational injury aggravated his previous lumbar
problems for which he had a prior surgery. A CT scan performed on the day of the injury
showed no acute trauma and a mild diffuse disc bulge at L4-5 resulting in spinal canal
stenosis, which was improved from a study in 2016. Similarly, an MRI on July 23, 2019,
demonstrated degenerative disc disease at L4-L5 with a significant reduction of the disc
bulge and nerve root impingement since a prior exam in 2016. A Schmorl’s node and a
disc bulge were also observed at L4-L5.

When Mr. Malnick returned to work on April 17, 2019, the claim administrator
suspended his TTD benefits, then closed the claim for TTD benefits by order dated May
28, 2019. Mr. Malnick continued to work until September 14, 2021, when he was taken off
work again due to increasing symptoms. By order dated October 14, 2021, the claim
administrator granted Mr. Malnick’s application to reopen the claim for additional TTD
benefits.

The claim administrator suspended TTD benefits on November 10, 2021, following
Mr. Malnick’s November 8, 2021, examination by Prasadarao Mukkamala, M.D. Dr.
Mukkamala opined that Mr. Malnick had reached maximum medical improvement
(“MMI”) for the compensable injury. According to Dr. Mukkamala, Mr. Malnick’s
ongoing symptoms were due to preexisting, noncompensable degenerative
spondyloarthropathy, and were unrelated to the compensable injury. By order dated
December 20, 2021, the claim administrator closed the claim for TTD benefits.

Mr. Malnick appealed the December 20, 2021, order to the Board. Mr. Malnick was
deposed on March 7, 2022. He testified that Bill Dean Underwood, M.D., performed a
spinal fusion on February 16, 2022, which was not covered under the claim. According to
Mr. Malnick, the surgery resolved his low back pain and the numbness and tingling in his
legs.

By order dated July 28, 2022, the Board affirmed the claim administrator’s order
closing the claim for TTD benefits. The Board found that the evidence established a
significant pre-injury history of low back symptoms and treatment that included surgery.
Additionally, the Board noted that imaging studies performed before the compensable
injury in the claim were comparable to those performed afterward. The Board also found
that Mr. Malnick’s pre-injury symptoms and complaints were comparable to his complaints
when he stopped work in September of 2021. It was noteworthy to the Board that Mr.
Malnick worked for a significant period of time after he returned to work in 2019. 4 The

4
It appears the Board miscalculated the period of time Mr. Malnick worked upon
his return. According to the claim administrator’s order dated April 17, 2019, suspending
TTD benefits, Mr. Malnick returned to work that day. Mr. Malnick reported to Dr.
2
Board also noted that the report by Anna Carpenter, M.D. dated October 20, 2021,
correlated Mr. Malnick’s current problems of chronic low back pain with degenerative disc
disease. Because of this and because the surgery was not covered in the claim, the Board
concluded that the claim was properly closed for TTD benefits. Mr. Malnick now appeals.

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.

On appeal, Mr. Malnick argues that the Board erred in finding that his TTD benefits
were properly terminated. He avers that he made an excellent recovery after undergoing a
discectomy surgery in 2016 and he was doing well until the injury in the claim, as noted
by Dr. Underwood, who performed the prior surgery and treated him for the injury in this
claim. Mr. Malnick contends that the claim administrator reopened his claim for TTD
benefits after he stopped working in September of 2021 because evidence proved his
symptoms were related to the compensable injury. Further, Mr. Malnick notes Dr.
Underwood did not find he was at MMI or capable of returning to work contrary to Dr.
Mukkamala’s report of November 8, 2021. Instead, Mr. Malnick points out that Dr.
Underwood determined that further treatment, a lumbar fusion, was needed to address
symptoms stemming from the compensable injury. Mr. Malnick asserts Dr. Underwood’s
opinion, which was based upon his prior treatment including the successful surgery in
2016, outweighs Dr. Mukkamala’s findings based upon a single examination. Specifically,
Mr. Malnick argues that Dr. Mukkamala was wrong to ascribe all of the current symptoms
to a preexisting condition that did not limit him before the compensable injury in this claim.

Mukkamala on November 8, 2021, that he stopped work again on September 14, 2021.
Thus, he worked nearly two and one-half years after he initially returned to work.
3
Mr. Malnick cites to Syllabus Point 5, Moore v. ICG Tygart Valley, LLC, __ W. Va.
__, 879 S.E.2d , 779 (2022), wherein the Supreme Court of Appeals of West Virginia held
that

[a] claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.

According to Mr. Malnick, he made a complete recovery after Dr. Underwood performed
the discectomy in 2016. He argues he was able to work without restrictions or limitations
and was not receiving active treatment until the injury in the present claim occurred. Thus,
he contends his disability is related solely to the compensable injury. Further, he notes that
although he returned to work in April 2019, his symptoms continued to require treatment
and by September 14, 2021, the pain was intolerable, and he had to stop working.

Mr. Malnick also cites UMWA v. Lewis, 172 W. Va. 560, 564, 309 S.E.2d 58, 62
(1983), and argues that a claimant is entitled to “temporary total disability benefits until
either the claimant is released to return to work or it conclusively appears that the
claimant’s inability to return to work is the result of a permanent disability or of medical
problems that are unrelated to the compensable injury.” Mr. Malnick asserts that Dr.
Underwood did not release him to return to work and determined that he required fusion
surgery to treat his symptoms. Thus, he argues that he remained temporarily totally
disabled from October 14, 2021, until he had completed physical therapy after the surgery
performed on February 16, 2022. Consequently, Mr. Malnick contends that the Board was
clearly wrong in affirming the closure of TTD benefits by order dated December 20, 2021.

After review, we agree with the Board that Mr. Malnick failed to refute Dr.
Mukkamala’s finding on November 8, 2021, that he had reached MMI for the compensable
injury. The lumbar fusion performed by Dr. Underwood on February 16, 2022, was not
covered under the claim, and thus cannot serve as a foundation for continued TTD benefits.
As noted by the Board, Mr. Malnick had a significant history of low back symptoms and
treatment that included low back surgery before he suffered the compensable injury.
Therefore, the Board was not clearly wrong in finding that Mr. Malnick’s preexisting
condition was not asymptomatic, as required under the analysis in Moore. 5

It is also observed that the issue in Moore was whether certain conditions were
5

compensable. The Supreme Court of Appeals did not address closure of TTD benefits.
4
Accordingly, we find no error in the Board’s order affirming the claim
administrator’s order closing the claim for TTD benefits.

Accordingly, we affirm.

Affirmed.

ISSUED: January 10, 2023

CONCURRED IN BY:

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

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