David Bolyard v. Tri-State Physician Management, Inc., and West Virginia Offices of the Insurance Commissioner, in its capacity as administrator of The Old Fund

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED DAVID BOLYARD, June 27, 2025 Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA v.) No. 25-ICA-14 (JCN: 2002048281) TRI-STATE PHYSICIAN MANAGEMENT, INC., Employer Below, Respondent and WEST VIRGINIA OFFICES OF THE INSURANCE COMMISSIONER, in its capacity as administrator of The Old Fund, Respondent MEMORANDUM DECISION Petitioner David Bolyard appeals the December 11, 2024, order of the Workers’ Compensation Board of Review (“Board”). Respondent Tri-State Physician Management, Inc., did not file a response. Respondent West Virginia Offices of the Insurance Commissioner in its capacity as administrator of the Old Fund (“Old Fund”) timely filed a response.1 Mr. Bolyard filed a reply. The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which denied Mr. Bolyard’s request to reopen the claim for an additional permanent partial disability (“PPD”) evaluation. This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51- 11-4 (2024). 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. The compensable injury in this case occurred on March 12, 2002, when Mr. Bolyard fell eight feet after the ladder he was using buckled at a construction site, and he struck his head on the concrete below. On the date of the injury, Mr. Bolyard was admitted to Washington County Hospital. 1 Mr. Bolyard is self-represented. Old Fund is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq. Tri-State Physician Management did not appear. 1  Mr. Bolyard underwent several CT scans while at Washington County Hospital. A CT scan of his head revealed very small bilateral subdural hematomas overlying the anterior medial frontal lobes; small subcentimeter hemorrhagic contusions in the anterior medial left frontal lobe; and hemorrhagic opacification of the left frontal sinus secondary to frontal bone fracture. A CT scan of the cervical spine revealed that the cervical spine was intact, and a minimally displaced fracture of the proximal posterior left 1st rib. A CT scan of the facial bones revealed nondisplaced fractures of the anterior aspect of the lateral wall of the left orbit and anterior medial roof of the left orbit. A CT scan of the head revealed no change in the appearance of the contents of the cranium with a noted small anterior bilateral subdural hematoma and a small parenchymal hemorrhage in the left side in the frontal lobe, and fluid density was noted in most of the paranasal sinuses, possibly representing inflammatory disease. M.J. Yacyk, D.O., treated Mr. Bolyard on March 14, 2002, while he was hospitalized. The impression was closed head injury with small bilateral subdural hematomas and hemorrhagic contusion, facial fractures, and multiple cognitive deficits primarily with memory and orientation. Mr. Bolyard was referred to physical therapy, occupational therapy, and speech therapy. On March 15, 2002, Mr. Bolyard was discharged from Washington County Hospital. The discharge diagnosis was multiple facial fractures, cerebral concussion, and bilateral subdural hematoma. On April 12, 2002, the claim administrator issued an order that held the claim compensable for closed fracture of ribs and injury to the head/neck. On June 26, 2002, the claim administrator issued an order that indicated that close skull VLT fracture, sprain/strain thoracic, sprain/strain shoulder, non-allopathic lesion cervical, cervicobrachial syndrome, and close fracture of ribs were primary and secondary conditions in the claim. By order dated September 10, 2002, the claim was closed for temporary total disability benefits (“TTD”) on the basis that Mr. Bolyard had returned to full time employment. On April 10, 2003, neuropsychologist Joseph Grady, M.D., evaluated Mr. Bolyard, who reported cognitive dysfunction, particularly with decreased memory and concentration. Dr. Grady opined that Mr. Bolyard had reached maximum medical improvement (“MMI”) for the March 12, 2002, injury. Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“Guides”), Dr. Grady determined Mr. Bolyard’s impairment rating. Dr.