Billy Johnson v. Blackhawk Mining - Workers' Compensation Appeal

1 STATE OF WEST VIRGINIA SUPREME COURT OF AP PEALS Billy Johnson, Claimant Below, Petitioner v. No. 24-516 and 24-517 (JCN: 2023009705) (ICA: NOS. 24-ICA-37 and 24-ICA-50) Blackhawk Mining, Employer Below, Respondent MEMORANDUM DECISION Petitioner Billy Johnson appeals the July 1, 2024, memor andum decision of the Intermediate Court of A ppeals (ICA), 1 wherein the ICA af firmed two decisions of the West Virginia Workers’ Compensation Board of Review (Board of Review): (1) a December 27, 2023, decision affirming a claim administ rator order holdi ng petitioner’s claim compensable for low back spr ain and granting no temporary total disabi lity (TTD) benefits, and (2) a J anuary 4, 2024, decision affirming a subsequent claim administrat or order d enying p etitioner’s request to reopen the claim for TTD benefits. In separate appeals of th e ICA decision to this Court, petitioner asserts that the medical evidence presented was s ufficient to (1) add cervical strain as a compensable condition t o his claim (Appeal No. 24-516), and (2) su pport an award of TTD benefits for petiti oner’s compensable lumbar injury from th e date of injury to at least July 31, 2023, the date Dr. Prasadarao Mukkamala, M.D., performed an independent medical examination (IME) o f petit ioner and opined that petitioner had reached h is maximum degree of improvement with regard to the compensable lumbar injury (A ppeal No. 24-517). We consolidated these appeals f or purposes of oral argument, consideration, and decision. Upon our r eview, we determine that a memorandum decision affirming t he ICA’s decision is appropriate. See W. Va. R. App. P. 21. 2 On June 28, 2022, petitio ner was employed by the re spondent as a rock t ruck driver. W hile 1 Se e Johnson v. Blackhawk Mining, No. 24- ICA-37 and 24-ICA-50, 2024 WL 3251892 (W. Va. Ct. App. July 1, 2024) (memorandum decision). 2 Petiti oner is represented by Jo hn H. Skaggs, Esquire. Respondent is represented by Jeffrey B. Brannon, Esquire. FILED February 18, 2026 released at 3:00 p.m. C. CASEY FORBE S, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

2 driving a truck in the course of his employment with respondent, petitioner w as i njured when he raised up the truc k be d to unload 300 tons of r ock and the truck rolled backward and down a forty- foot embankment. Petitioner w as transpo rted by a mbulance to the eme rgency department at Charleston Area Medical Center (CAMC) where he re ported feeling “‘his b ack pop,’ ” “significant pain in his middle back down his spine,” and “occasional tingling in his legs.” 3 Petitioner “[d]enie[d] any ot her inj uries.” The em ergency department final report noted that “X-rays are negative. Patient is not in acute distress at this time. Patient had muscular tenderness on t he left lumbar musculature.” Petitioner was discharged without restriction. 4 On the Employees’ and Physicians’ Report of Occupational Injury or Di sease form that was complete d on th e da te of th e accident, petitioner’s attending physician at CAMC noted that petitioner sustained a “low back” occupational injury and that the injury did not aggravate a prior injury or disease. The question on the f orm a s to whether petiti oner was “ advised .. . to remain off work 4 or more days” w as left blank, as was the “Da te Patient May Return to Work.” Respondent completed a 24 Hr. Incident Investigation Report, describing the accident and noting that petitioner “stated he had discomfort in his lower back and was jarred in the c ab.. .. [Pe titioner] was r eleased from CAMC General to return to his next scheduled shift.” Petitioner reported to the worksite to work his next scheduled shift. 5 However, he was suspended pending an investigation into the accident. On June 30, 2022, he was terminated from his employment for substandard performance. 6 The medical evidence of record shows that, beginning in 2015 and through June 20, 2022, petitioner was seen extensi vely by various medic al providers at Hill Chi ropractic Center, Logan Regional Medical Center, and Family Healthcare Associates, for complaints of, among other things, lumbar pain and discomfort and cervical pain. On June 29, 2022, one day after the accident and during his suspension from work, petitioner was s een by Leah S mith, APRN-CN P, at Family Healthcare Associates, where h e reiterated that he “felt a pop in the middle of his back” while dumping the load from his truck t he 3 Petitioner was unrestrained but not ejected from the truck. 4 An MRI of the l umbar spine was orde red but not performed until August 26, 2022. I t showed “[m]oderate narrowing right neural foram ina and mild narrowing left neural foramina at the L5-S1 level” and “[n]o spinal stenosis.” 5 Petitioner’s r egular shift was 5:00 p.m. to 3:00 a.m. He was injured at the end of his shift on June 28, 2022. He reported t o work his n ext shift, which was to b egin at 5:00 p.m. that same day. 6 According to respondent, petitioner was hired on May 23, 2022. He was in volved in two serious work truck accidents during his one-month-long tenure, accide nts causing signi ficant property d amage to two different rock trucks due to “inattentiveness” and having the potential to cause significant injury to himself and others.

3 previous day. The physical examination revealed spinal tenderness at the thoracic and lu mbar spine with muscle spasticity. Petitioner also “report[ed] trouble with bowels, numbness and tingl ing in BLE.” Ms. Smith assessed petitioner with lower back sprain and encopresis. During follow-up medical examinations with Ms. S mith on July 7, 2022, and August 1, 2022, it was noted that petitioner complained of “pain i n mid back and lower back radiating into neck and lower extremities.” Ms. Smith again assessed petitioner with l ower back sprain. Petitioner was also seen a t Family Healthcare Associates by C. Dale Cook, PA C, on July 15, 2022, and August 29, 2022, with similar complaints. Mr. Cook’s assessment was lower bac k sprain. Further, Mr. Cook’s repo rts specifically noted under “Review of Systems” t hat petitioner had “[n]o neck pain.” 7 The August 29 th report stated, “no work for 4 weeks.” By order entered A ugust 29, 2022, the claim administrator approved pe titioner’s claim for “sprain to low bac k” an d determined that “[b]as ed upon our information, you ha ve re turned to work and are not entitled to wage loss benefits at this time.” Petitioner protested this order, requesting the addition of “neck, both low er ex tremities, hands, and bowel” as compensable conditions, and an award of TTD benefits. Petitioner returned to Mr. Cook for a follow-up visi t on October 24, 2022. Like previous reports, it wa s noted that petitioner complained of “pain i n mid ba ck and lo wer back radiating i nto neck a nd lower extremities.” Under “Review of Systems,” it was spec ifically noted that petitioner had “[n]o neck pain.” On Nove mber 4, 2022, Mr. Cook completed an Attending Physician Benefits Form reporting that petitioner “has not returned to work. He continues to be off work since inj ury” and noting petitioner’s estimated period of disabilit y to be from “6/28/22 to prese nt.” Mr. C ook also indicated th at p etitioner was not at maximum medical improvement and w as ready for a p ermanent partial disability rating. The form was forwarded to the third-party administrator. On January 6, 2023, petit ioner submitted answ ers to interrogatories identifying injuries to his “Neck – C1 & C 3” and “Back – L5 & S1” resulting from the workplace accident and the healthcare providers and facilities where he received treatment related thereto. Petitioner testified in a deposition on February 1 5, 2023, that, because of the workplace accident, he “messed up C-1, C-3 in m y neck.... [and] L-5 a nd S-1 in my back.” Petitioner testified that Mr. Cook referred him to physical therapy, that thrice we ekly treatments and medication have not helped him, and that he recei ves steroid shots in his back every three t o four weeks. Petitioner testified that he has “sharp pains down the middle of my neck down to my bac k, and also, it really hurts. It is different from before [the accident]. .. . Now, it is worse.” According to petitioner, prior to this workplace accident, he had never missed work due to health problems. Petitioner has not worked since the accident. 7 The reports authored by Ms. Smit h and Ms. Cook were approved by Dr. S amuel A. Muscari, Jr., D.O.

4 Mr. C ook completed another Attending Physician Benefits Form on March 13, 2023, that again noted that petitioner’s estimated period of disability was from “6/28/22 to present.” Mr. Cook also indicated that petitioner was not at maximum medical improvement and was ready for a permanent partial disability rating. The form was forwarded to the third-party administrator. While his protest to the August 29, 2023, order was pe nding, petitioner r equested a reopening of the TTD benefits claim. By order e ntered March 31, 2023, the cla im administrator denied petitioner’s request for a reopening of the claim for TTD benefits 8 on the ground that there w as no medical evidence that petitioner sustained an a ggravation or progression of his compensable condition. 9 Petitioner protested this order. On July 31, 2023, Dr. Mukkamala performed an IME of petit ioner. Dr. Mukkamala reported that petitioner “complained of neck pain and pain in the low back.” Based upon his examination of petitioner and consideration of petitioner’s extensive medical history, Dr. Mukkamala diagnosed p etitioner with “lumbar sprain/ strain” and con cluded t hat hi s “compensable injury is lumbar sprain/strain.” 10 Dr. Mukkamala opined that petitioner had reached maximum degree of improvement from the compensable low back injury. As st ated in his report, Dr. Mukkamala determined that petitioner had an 8% whole person im pairment resulting from “pre- existing back pain, the pre-e xisting noncompensable degenerative spondyloarthropathy as well as 8 By separate order entered June 6, 2023, the claim administrator denied petitioner’s request for payment fo r medical t reatment received on May 17, 2023, because the treatment was neither medically necessary nor reasonably r equired to treat the c ompensable condit ion of petiti oner’s claim. Petitioner protested this order, which order the Board of Review ult imately affirmed. Th e Board of Review’s ruling in th is rega rd wa s not appealed to the ICA and is not at issue in the present appeal to this Court. 9 The March 31, 2023, order denying petitioner’s request to reopen the claim for TTD benefits indicated that the request to re open was submitted on February 27, 2023. The r equest was not made a part of the appendix record before this Court. 10 In his IME report, Dr. Mukkamala referenced, with specificity, numerous medica l records from Logan Regional Medical Center (from July 7, 2018 to Jul y 29, 2022); Hill Chiropractic Center (from August 24, 2015 to October 10, 2022); and Family Healthcare Associates (from July 7, 2014 to February 14, 2023), which, among other things, documented petitioner’s history of ne ck and back pain both before and after the work place a ccident. Among the medical records Dr. Mukkamala reviewed was a report from Robert Austen, D.O. at Logan Regional Medical Center who examined petitioner in the emergency d epartment the day after the workplace accident. As recounted in the IME rep ort, Dr. Austen reported t hat “[e]xamination of the neck revealed full range of motion without nuchal rigidity or vertebral point tenderness.”

5 the compensable incident of 6/28/22.” 11 As Dr. Mukkamala explained, [T]his claimant has had back pain with several visits to the medical personnel starting in 2014. Please note that even on t he day before this particular injury of 6/28/22 meaning 6/27/ 2022 he presented to Leah Smi th, the nurse practitioner with complaints of back pain. They referred the claima nt to physica l therapy at that time. Tha t was only one day prior to the compensable injury of 6/28/22. 12 Therefore, I will appor tion impairment and a llocate 4% to pre- existing noncompensable back pain with degenerative spondyloarthropathy and 4% to the compensable injury of 6/ 28/22. 13 (Footnotes added). In a deposition taken on August 31, 2023, p etitioner testified that he returned to work the evening of t he accident but respondent “just t old me to go home.” When specifically asked whether he was “ready, willing, and able t o work [his] shift” that day, petitioner answered in the affirmative. By order entered December 27, 2023, t he Board of Review af firmed the August 29, 2023, claim administrator order holding the claim compe nsable for low back spra in and gr anting petitioner no TTD benefits. As to compensability, the Board of Review found that the only medical opinion on record regarding causality is from Dr. Mukkamala. Per his report dated July 31, 2023, he only opined that lumbar sprain/strain resulted from the compensable injury. Dr. Mukkamala’s opinion is unrefuted. There is no medical opinion on record that the conditions/components requested b y the cla imant are causally rel ated to the compensable event o f June 28, 2022. The claim administrator was not in error in holding s prain to the low back as the only compensable condition of the claim. In affirming the denial of TTD benefits, the Board of Review found that 11 Contrary to petiti oner’s deposition testimony that, prior to sustaining his compensable lumbar i njury, he had never missed work due to health problems, Dr. Mukkamala noted in his report, r egarding petit ioner’s history of ba ck pain, that petitioner “stated that sometimes he missed work 2 or 3 times[,] a day or 2 on account of the previous back pain.” 12 In the IME report, Dr. Mukkamala referenced Ms. Smith’s June 27, 2022, examination of petiti oner, at which peti tioner reported hi s “[c] hief complaint” as “[b]ack pain” in the “lumbar region.” 13 According to petitioner, he received a 4% permanent partial disability awar d, which award is not at issue in this appeal.

6 The claimant subm itted an Attending Physician Benefits Form indicating that he was TTD from June 28, 2022, through March 13, 2023. However, the claimant te stified that h e r eturned to work on June 29, 2022, and was ready, willing, and able to work his shi ft that day. He did not work his shift bec ause he was sent hom e by the employer and two days later was terminated from his employment with cause. The evidence establishes that the claimant could return to work but has not r eturned to work du e to causes other th an his compensable lumbar sprain injury. The claim administrator was not in error in denying TTD benefits. The Board of Review thus concluded that “[t]he claimant has not e stablished that the nec k, both lower extremities, hands, and bowel are causally related to the compe nsable injury” or that “he is TTD due to the compensable injury of lumbar sprain.” In a subsequent order entered January 4, 2024, the Board of Review affirm ed the March 31, 2023, claim administrator order d enying peti tioner’s request to reopen the claim for TTD benefits. The Boa rd of Review observed that “[n]o reopening request... is of record” and concluded tha t “[t]he evidence fa ils to establish a n aggrava tion or progr ession of the compensable injury or facts not previously considered w hich would entitle the claimant to . . . TTD benefits.” 14 Petitioner appealed bot h the December 27, 2023, and January 4, 2024, ord ers to the ICA, and the ICA affirmed. Petitioner now appeals. On appeal, we r eview questions of law de novo and accord deference to the findings of fact made by the B oard of Review unless the findings are clearly wrong. Se e Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). We first consider petitioner’s argument that the Board of Review erred in concluding t hat petitioner failed to establish that he sustained a cervical strain a s a result of t he June 28, 2022, workplace accident. 15 Petit ioner argues that there was su fficient evidence of cervical strain as a compensable condition in this case, including his depositi on testimony and interrogatory answers identifying injury t o his “[n]eck – C1 & C3” as “new”; medical records dated August 29, 2022, and October 24, 2022, indicating that petit ioner was complaining of “pain i n mid back and lower back radiating i nto neck and lower extremities;” and medical records of pe titioner’s treatment at Hill Chiropractic Center for, among other things, back and neck pain after the June 28, 2022, accident. We find no error. 14 The Board of Review also set forth additional reasons for affirming the claim administrator order denying the reopening request that we need not address herein, and we affirm solely on the grounds stated in this decision. 15 The Board of R eview denied petitioner’s request to add “ne ck, both lowe r extremities, hands, and bowel ” as com pensable conditions. In the present appeal, petit ioner argues onl y that the Board of Review erred in denying the addition of cervical strain as a compensable condition.

7 Under West Vir ginia law, f or a n injury to be compensable it must be “(1) a pe rsonal injury (2) rece ived in the course of employment [a]nd (3) resulting f rom that employment.” Syl. Pt. 1, in part, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). The claimant has the burden of proving the elements of his or her workers’ compensation claim. See Syl. P t. 2, i n part, Sowde r v. State Workmen’s C omp. Comm’r, 155 W. Va. 889, 189 S.E.2d 674 (1972). The Board of Review correc tly concluded that the rec ord fails t o support cervica l strain as a compensable condit ion in this case. Medical records from CAMC, Logan Regional Medical Center, and Family Healthcare A ssociates documenting petitioner’s injury immediately f ollowing the accident and examina tions of petitioner in the days and weeks thereafter consistently diagnosed petitioner with only lower back sprain resulting from the workplace accident. Although petitioner relies on evaluations from follow-up visits on August 29, 2022, and October 24, 2022, where he complained of pain in his back radiating into his neck as proof t hat h e sus tained a cervical injury as a result of the workpl ace accident, the records from those visits specifi cally documented that petitioner had “no neck pain.” 16 Further, base d upon his examination of petitioner and consideration of petitioner’s extensive medical hi story, Dr. Mukkamala found petitioner’s compensable condition to be limited to lumbar sprain/strain. “I n order to establish compensability an employee who suffers a disabili ty in the course of his employment must show by competent evidence t hat there w as a causal connection be tween such disability and his employment.” Syl. Pt. 3, Deverick v. State Comp. Dir., 150 W. Va. 145, 144 S.E.2d 498 (1965). Sim ply put, notwithstanding petitioner’s t estimony and interrogatory answers to the contrary, the m edical evidence of record does not causally connect petitioner’s purported cervical injury to the workplace accident. Accordingly, we find no error in the B oard of Review’s decision affirming the claim administrator order holding petitioner’s claim compensable for lumbar sprain. Next, we consider whether the Board of Review erre d in af firming the claim a dministrator order denying pe titioner an award of TTD benefits. Petitioner a rgues that he has not worked since the date of injury and is entitled to TTD b enefits from that date until Jul y 31, 2023, the date Dr. Mukkamala opined that he had reached his maximum degree of impro vement regarding the compensable lumbar injury. “Temporary t otal di sability is an inability to return to substantial gainful employment requiring skills or activities comparable to those of one’s pre vious gainful employment during the healing or recovery perio d after injury.” Syl. Pt. 1, Allen v. Workers’ Comp. Comm’r, 173 W.Va. 238, 314 S.E.2d 401 (1984). 17 Pursuant to West Virginia Code § 23-4-7a(e), TTD be nefits are not payable once an injured worker “has r eached his or her maximum degree of improvement,” “is 16 An earlier report by Mr. Cook on July 15, 2022, similarly documented “no neck pain.” 17 See W. Va. Code § 23-4-5 (providing that “ [i]f the per iod of disability does not last longer than three days from the day the employee l eaves work as the r esult of the inj ury, no [TTD] award shall be allowed... [.]”); W. Va. Code St. R. § 85-1 -5.1 (providing that “[t]o qualify fo r [TTD] benefits, the claimant must be unable to work as a result of the c ompensable injury mor e than three (3) cons ecutive calendar days following the date of injury b efore benefits become payable.”).

8 released to return to work,” or “actually returns to work.” The claim administrator denied petitioner an award of TTD benefits beca use petitioner “ha[d] r eturned to work and [was] not entitled t o wage loss benefits at th[a t] tim e.” Accordingly, the claim administrator awarded p etitioner no TTD be nefits and petitioner protested the order. Petitioner argues that an A ttending Physician Ben efits Form completed by Mr. C ook on November 4, 2022, indicating an estimated period of disability from June 28, 2022 to “present,” and stating that petitioner “has not returned to w ork” and “continues to be off work since injury,” a s well as a second su ch fo rm completed on March 13, 2023, again indicating t he peri od of disability to be from the date of th e workplace accident to “present,” prov e that petitioner was tot ally disabled. According to petitioner, based upon this evidence, the Board of Review should have awarde d him TTD benefits from the d ate of injury until Dr. Mukkamala opined on July 31, 2023, that he had reached maximum degree of improvement. See W. Va. Code § 23-4-7a(e). We find no error. The Board of R eview considered medical records reflecting that, on the date of the accident, pe titioner was discharged from the emergency department a t CAMC without restriction; the Employees’ a nd Physicians’ Report of Occ upat ional Injury or Disease form reflecting that the attending emergency department physician did not advise petitioner to remain off work; and the 24 Hr. Incident I nvestigation Report completed on the day of the ac cident confirming that petitioner was released from the emergency department to return to his next scheduled shi ft. Consistent with this evidence was petiti oner’s own testimony that he was r eady, willing, and able to wor k his sh ift on the same evening that the workplace accident occur red and that he did, in fact, return to the worksite for that purpose only to be suspended and t hen terminated for substandard employment performance. This evid ence remains unrefuted. C ritically, petitioner points to no medical evidence from any healthcare provider causally connecting hi s purported inability to work to his compensable injury. Thus, we find no error in the Board of Review’s order affirming the claim administrator order approving petitioner’s lumbar sprain on a no-lost-time basis. Finally, we address petitioner’s argument that the B oard of Review erred i n affirming the claim administrator’s order denying his request to reopen his claim for TTD benefits. U nder West Virginia Code § 23-5-3a, where an application for further adjustment of a c laim “fails to disclose a progr ession or aggrava tion in the claimant’s co ndition, or so me other fact or facts which were not previously considere d in [] fo rmer findings, a nd which would entitle the claimant to greater benefits than the claimant has already received,” 18 t he application will be denied for “fail[ure] to establish a prima facie cause for reopening the claim.” 19 We note, first, that because petitioner failed to include his request to reopen his claim for TTD benefits in the appendix record, this Court is unable to review on what basis the request was made. Likewise, petitioner’s brief fails to make obvious referenc e to the evidence on w hich h e based hi s r eopening r equest. We have admonished that this Court “will t ake as nonexisting all facts 18 See Syl. Pt. 2, Wilso n v. Workers’ Comp. Com m’r, 174 W.Va. 611, 328 S.E.2d 485 (1984) (holding that rein statement of a claimant’s TTD benefits “must be based upon new facts showing an aggravation or progression of the injury or other facts not theretofore considered”). 19 See Syl., Harper v. State Workmen’s Comp. Comm’r, 160 W. Va. 364, 234 S.E.2d 779 (1977) (holding the evidentiary standard fo r obtaining a reopening of a cl aim to be “a prima facie cause, which me ans nothi ng more than any evidence which would tend to justify, but not to compel the inference that there has been a progression or aggravation of the former injury”).

9 that do not appear in the [appendix] record and will ignore those i ssues where the missi ng record is needed t o give factual support t o the claim.” State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994). Second, petitioner fails to argue that either of the statutory prere quisites to the reopening of a claim for TTD be nefits has been met—that is, that the ev idence established a n aggravation o r progressi on of the compens able i njury or the exist ence o f facts not pr eviously considered and which would entitle him to TTD benefits. See W. Va. Code § 23-5- 3a. Rathe r, petitioner argu es only th at he is entitled t o TTD benefits from the date of injury until the date it was det ermined that he h ad r eached maximum d egree of improv ement be cause, h e cont ends, he was never “released to return to work” no r “actually returne d to work” after the workplace accident. The evidence of record, as we found above, is to th e contrary. Therefore, we find no error in the order of th e Board of Review affirming the claim administrator order denying petitioner’s request to reopen his claim for TTD benefits. Based upon the foregoing, the decision of the ICA affirming the order s of the Board of Review is affirmed. Affirmed. ISSUED: February 18, 2026 CONCURRED IN BY: Chief Justice C. Haley Bunn Justice William R. Wooton Justice Charles S. Trump IV Justice Thomas H. Ewing Justice Gerald M. Titus III