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.

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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.

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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. Grady concluded
that Mr. Bolyard had 7% WPI for traumatic brain injury. Dr. Grady indicated that Mr.
Bolyard did not have signs of permanent impairment for the rib fractures, left shoulder,
thoracic spine, or cervical region. He recommended 7% WPI for the compensable injury.
The claim administrator issued an order dated May 26, 2003, which granted Mr. Bolyard a
7% PPD award based on Dr. Grady’s IME report.

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Chuan Fang Jin, M.D., performed an IME of Mr. Bolyard and issued a report dated
September 17, 2004. Mr. Bolyard reported tremors when under stress, poor balance,
difficulty walking on uneven surfaces, poor memory, and problems with his left shoulder.
Dr. Jin’s impression was closed head injury with cognitive deficit; multiple rib fractures,
lung contusions resolved; left orbital fracture, resolved; left shoulder rotator cuff tear,
stable; cervical sprain/strain, resolved; and preexisting degenerative cervical disc disease.
Dr. Jin placed Mr. Bolyard at MMI. However, she noted that his cognitive problems may
progress.

Using the Guides, Dr. Jin determined Mr. Bolyard’s impairment rating. She noted
that Mr. Bolyard had been asymptomatic and totally recovered from multiple fractures of
the ribs, and he did not complain of any respiratory difficulties. Thus, Dr. Jin stated that
there is no impairment from the multiple rib fractures and lung contusions. For the left
shoulder, Dr. Jin recommended 0% WPI. For cervical sprain/strain, Dr. Jin placed Mr.
Bolyard in category IIA of Table 75 on page 113, which allows for 0% WPI. For cervical
range of motion, Dr. Jin used Table 76 on page 118, Table 77 on page 120, and Table 78
on page 122 and recommended 0% WPI. For the central nervous system, Dr. Jin used Table
1 on page 141, classified Mr. Bolyard under the first category, and recommended 4% WPI.
Dr. Jin recommended 9% WPI for short-term memory deficit with poor concentration and
other mental status impairment, based on Table 2 on page 142. For balance and tremors,
Dr. Jin recommended an impairment rating of 7% WPI. Dr. Jin combined these impairment
ratings for a total recommendation of 18% WPI. On October 27, 2004, the claim
administrator granted Mr. Bolyard an 18% PPD award based on Dr. Jin’s report.

On May 24, 2004, Mr. Bolyard requested that the claim be reopened for additional
temporary total disability (“TTD”) benefits. The claim administrator denied this request by
order dated June 10, 2004. Mr. Bolyard protested this order. The Office of Judges issued a
decision dated April 19, 2005, which affirmed the denial of the reopening. The claim was
not reopened for either TTD benefits or PPD benefits thereafter, and no additional
conditions were added as compensable in the claim.

On July 9, 2022, Gabriella Szatmary, M.D., examined Mr. Bolyard. Dr. Szatmary
stated that the neurological examination was essentially unremarkable except for a mild
anisocoria OD 5mm, OS 4.5mm without ptosis. She indicated that they would repeat his
neuropsychology test, and that he should return in six months for a follow-up visit.

On March 2, 2023, Mr. Bolyard requested that his claim be reopened for additional
medical treatment. The claim administrator issued an order dated April 26, 2023, which
denied the request on the basis that it had been more than five years since Mr. Bolyard

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received any medical treatment in the claim.2 By order dated February 14, 2024, the Board
affirmed the claim administrator’s order, concluding that the request for reopening for
medical consideration was time-barred pursuant to West Virginia Code § 23-4-16(a)(4).

On April 9, 2024, Mr. Bolyard sent a letter to the claim administrator that requested
he be referred for a PPD evaluation on the basis that the additional diagnosis of traumatic
brain injury was added to his claim.3 On May 9, 2024, the claim administrator issued an
order which denied Mr. Bolyard’s request to reopen the claim for an additional PPD
evaluation on the basis that the claim was statutorily barred for PPD benefits. Mr. Bolyard
protested this order to the Board.

On December 11, 2024, the Board issued an order affirming the claim
administrator’s order denying Mr. Bolyard’s request to reopen the claim for an additional
PPD evaluation. It is from this order that Mr. Bolyard 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

2
It appears from the record that Mr. Bolyard protested this denial to the Offices of
the Insurance Commissioner instead of the Board. Scott Clark issued a letter dated June
13, 2024, which indicated that he received Mr. Bolyard’s inquiry concerning the denial of
his request for a PPD evaluation. Mr. Clark stated that if Mr. Bolyard disagreed with the
order denying an evaluation, he could protest the denial to the Board.
3
We note that although Mr. Bolyard asserted that he should be referred for a PPD
evaluation because traumatic brain injury was newly added to his claim, this condition was
already a part of the claim at the time of Dr. Grady’s April 10, 2003, IME.

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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, Mr. Bolyard argues that he could never return to work following the
compensable injury. Mr. Bolyard also asserts that this claim was improperly closed, and
that his request to reopen the claim for a PPD evaluation was wrongfully denied. Further,
he asserts that several of the doctors who considered the claim did not recognize that he
had a traumatic brain injury. Mr. Bolyard also avers that Dr. Grady wrongly concluded that
his rotator cuff was healed.

Upon review, we conclude that Mr. Bolyard has not demonstrated that the Board
was clearly wrong in affirming the claim administrator’s order, which denied the request
to reopen the claim for an additional PPD evaluation. Here, the Board concluded that Mr.
Bolyard’s request to reopen the claim for consideration of an additional PPD award was
statutorily barred by West Virginia Code § 23-4-16(a)(2) (2005)4. It is undisputed that Mr.
Bolyard received his initial PPD award by order dated May 26, 2003. Accordingly, Mr.
Bolyard had five years from the date of his initial award to file a reopening request for any
modification. See Payne v. U.S. Steel Mining Co., Inc., No. 22-ICA-186, 2023 WL
1464100, at *3 (W. Va. Ct. App. Feb. 2, 2023) (memorandum decision) (finding that
claimant had five years from the date of his initial award to file a reopening request for any
modification). That timeframe expired on May 26, 2008. Mr. Bolyard did not file his
reopening application until April 9, 2024. Thus, the Board was not clearly wrong in
concluding that Mr. Bolyard’s request was time-barred.

Further, we note that Mr. Bolyard’s assertion that Dr. Grady wrongfully concluded
that his rotator cuff was healed is not a proper issue before this Court, as neither the
underlying claim administrator’s order nor the Board’s order addresses a rotator cuff injury.
Instead, the sole issue below was Mr. Bolyard’s request to reopen the claim for an
additional PPD evaluation. Additionally, although Mr. Bolyard argues that the doctors
below did not consider that he had a traumatic brain injury, this condition was already a
part of the claim at the time of Dr. Grady’s April 10, 2003, evaluation, and was the basis
for Dr. Grady’s recommended 7% PPD award. Thus, traumatic brain injury is not a newly
added diagnosis that could warrant an additional PPD evaluation.

Finding no error, we affirm the Board’s December 11, 2024, order.

4
West Virginia Code § 23-4-16(a)(2) (2005) provides, in part, “in any claim in
which an award of permanent disability was made, any request must be made within five
years of the date of the initial award. During that time period, only two requests may be
filed.”

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Affirmed.
ISSUED: June 27, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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