Appeal No. 2050763, Claim No. 2014011698
John Dye, by Linda Garrett, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
appeal arises from the Board of Review's Final Order
dated February 19, 2016, in which the Board affirmed an
August 4, 2015, Order of the Workers' Compensation Office
of Judges. In its Order, the Office of Judges affirmed the
claims administrator's October 1, 2014, decision which
denied the addition of L5-S1 disc herniation to the claim.
The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds that the Board of Review's decision is
based upon erroneous conclusions of law. This case satisfies
the "limited circumstances" requirement of Rule
21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.
Dye, a mine inspector, was injured on October 10, 2013, while
pushing a box. The employee's report of injury indicates
he injured his lower back while pushing a metal box the day
before. The diagnosis was listed as lower back strain and it
was indicated that Mr. Dye aggravated a prior injury/disease
of bulging discs in the lower back.
sustained a prior lower back injury on March 14, 2013, while
moving a miner cat head. An MRI taken on April 6, 2013,
showed an L5-S1 paracentral disc protrusion and degenerative
disc disease. He was treated for the injury by Jeffrey
Greenberg, M.D., who placed Mr. Dye on light duty work for a
few months while he underwent therapy. He returned to full
duty work on June 3, 2013.
the October 10, 2013, injury, Mr. Dye began experiencing
increased lower back pain. An MRI taken on November 11, 2013,
revealed a left paracentral disc protrusion at L5-S1,
markedly impinging on the left lateral recess and descending
S1 nerve root. Treatment notes from Dr. Greenberg indicate
Mr. Dye was seen on November 15, 2013. He was walking with a
limp and had difficulty sitting for any period of time. Dr.
Greenberg recommended a lumbar epidural injection and
released Mr. Dye to return to light duty. The lumbar
injections were approved by the claims administrator on
November 27, 2013. On December 12, 2013, Dr. Greenberg noted
that Mr. Dye had a focal disc rupture at L5-S1 and that pain
medication was not working. He was in intense pain so Dr.
Greenberg recommended a microlumbar discectomy and referred
Mr. Dye to John Orphanos, M.D. On November 27, 2013, the
claim was held compensable for aggravation of a pre-existing
disc protrusion at L5-S1 on the left.
Orphanos saw Mr. Dye on January 9, 2014. At that time, he
reported severe back pain that radiated into the left leg.
Dr. Orphanos diagnosed displacement of lumbar intervertebral
disc and low back and left leg pain likely secondary to the
herniated disc. He recommended a discectomy with
decompression which he performed on March 7, 2014. On May 20,
2014, Mr. Dye's symptoms had improved but he still has
back pain. He was referred to physical therapy. On April 17,
2014, he requested to return to full duty work and Dr.
addendum report dated March 20, 2014, Joseph Grady, M.D.,
noted that the compensable condition in the claim is lumbar
sprain. He stated that he had reviewed Mr. Dye's
treatment notes and opined that the L5-S1 disc herniation was
a pre-existing condition, as seen on the April 6, 2013, MRI,
for a previous back injury. Dr. Grady stated Mr. Dye's
symptoms increased as a result of the pre-existing condition
and opined that he suffered an aggravation of a pre-existing
disc herniation at L5-S1. Based on his report, the claims
administrator denied the addition of L5-S1 disc herniation to
the claim on October 1, 2014.
Office of Judges affirmed the claims administrator's
decision in its August 4, 2015, Order. It stated that the
claims administrator's November 27, 2013, compensability
Order correctly characterized the October 10, 2013, injury as
causing an aggravation of a pre-existing disc protrusion at
L5-S1 on the left. The Office of Judges held that the
compensable injury did not cause the herniated disc. Mr. Dye
was first diagnosed with a herniated L5-S1 disc on April 6,
2013, months before the October 10, 2013, injury at issue.
However, the Office of Judges did conclude that aggravations
of pre-existing conditions are compensable and found Mr. Dye
was entitled to treatment due to said aggravations. The Board
of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on February
review, we have determined that this case should be remanded
to the Office of Judges for consideration of this Court's
recent decision in Gill v. City of Charleston, 236
W.Va. 737, 783 S.E.2d 857 (2016). In the rejection of Mr.
Gill's request to add diagnoses resulting from his prior
back injuries to his claim, we held that:
A noncompensable preexisting injury may not be added as a
compensable component of a claim for workers'
compensation medical benefits merely because it may have been
aggravated by a compensable injury. To the extent that the
aggravation of a noncompensable preexisting injury results in
a discreet new injury, that new injury may be found
Id. at 738, 783 S.E.2d at 858, syl. pt. 3. As this
case deals with an aggravation of Mr. Dye's preexisting
injury, it must be determined if Gill applies.
foregoing reasons, we find that the decision of the Board of
Review is based upon erroneous conclusions of law. Therefore,
the decision of the Board of Review is reversed and remanded
with instructions to ...