RANDY D. STOWERS, Claimant Below, Petitioner
WEST VIRGINIA DIVISION OF HIGHWAYS, Employer Below, Respondent
Appeal No. 2050904) (Claim No. 2014018771)
Randy D. Stowers, by John Shumate, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. The West Virginia Division of Highways, by Lisa
Warner Hunter, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated May 2, 2016, in which the Board affirmed an October 26,
2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's March 12, 2015, decision denying a
request to add a lumbar disc herniation as a compensable
component of Mr. Stowers's claim for workers'
compensation benefits. 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 no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Stowers sustained multiple injuries on December 19, 2013,
when he fell while exiting a truck during the course of his
employment with the West Virginia Division of Highways.
Immediately following the injury, Mr. Stowers received
emergency medical treatment at Plateau Medical Center and was
diagnosed with multiple contusions, an ankle sprain, a
hip/thigh sprain, a wrist sprain, a lumbosacral sprain,
chronic lower back pain, and lumbosacral disc degeneration.
X-rays of the lumbar spine revealed degenerative disease.
Additionally, a lumbar spine MRI revealed a disc herniation
with diffuse bulging and osteophyte formation at L2-3, a mild
disc bulge at L3-4, a large central and left-sided L4-5 disc
herniation with moderate to severe left-sided neural
foraminal encroachment, and an L5-S1 disc protrusion with
diffuse disc bulging and osteophyte formation. On January 6,
2014, the claims administrator held the claim compensable for
a left hip/leg contusion, a right ankle sprain, a right wrist
sprain, and a right shoulder sprain.
February 24, 2014, Mr. Stowers sought treatment with
neurosurgeon John Schmidt, M.D., for complaints of pain in
his lower back with radiation into his hips and legs.
Additionally, Dr. Schmidt noted that Mr. Stowers has a
history of lower back pain. He further noted that the lumbar
spine MRI performed on December 19, 2013, revealed
degenerative disc disease throughout the lumbar spine with
disc herniations at L2-3, L4-5, and L5-S1. Dr. Schmidt opined
that Mr. Stowers sustained an acute musculoskeletal
mechanical back and hip sprain superimposed on degenerative
spondylotic arthropathy and multiple levels of disc
herniations. On April 10, 2014, Edward McCormick, D.C., Mr.
Stowers's chiropractor, authored a letter addressed to
the claims administrator in which he stated that he believes
that Mr. Stowers injured his lumbar spine during the December
19, 2013, accident. Dr. McCormick noted that the December 19,
2013, lumbar spine MRI revealed an L4-5 disc herniation,
which he opined is consistent with the mechanism of injury
and Mr. Stowers's current symptoms. He requested that a
lumbar disc herniation be added as a compensable component of
Mr. Stowers's claim for workers' compensation
September 26, 2014, the Office of Judges modified the January
6, 2014, claims administrator's decision holding the
claim compensable and added a lumbosacral sprain as a
compensable component of the claim. However, the Office of
Judges also evaluated Dr. McCormick's request to add a
lumbar disc herniation as a compensable diagnosis and
determined that the evidentiary record indicated that the
lumbar disc herniation is unrelated to the compensable
Stowers sought treatment for ongoing lower back pain with
A.E. Landis, M.D., on November 4, 2014. Dr. Landis diagnosed
Mr. Stowers with a lumbosacral contusion/sprain superimposed
on pre-existing degenerative disc disease. He also diagnosed
an L4-5 disc herniation. Mr. Stowers continued to seek
treatment with Dr. Landis, and on March 10, 2015, Dr. Landis
completed a diagnosis update request in which he listed Mr.
Stowers's primary diagnosis as a lumbosacral
sprain/strain and his secondary diagnosis as a lumbar disc
displacement without myelopathy. On March 12, 2015, the
claims administrator denied Dr. Landis's request to add a
lumbar disc herniation as a compensable diagnosis. The claims
administrator also determined that the compensability of the
lumbar disc herniation has been fully litigated through the
September 26, 2014, Office of Judges' Order in which Dr.
McCormick's request to add a lumbar disc herniation as a
compensable diagnosis was denied.
Marsha Lee Bailey, M.D., performed a records review on August
3, 2015. Dr. Bailey opined that the claims administrator
properly denied Dr. Landis's request to add a lumbar disc
herniation as a compensable diagnosis. Specifically, she
opined that the degenerative disc disease, degenerative facet
disease, and disc osteophyte complex revealed via MRI
developed over the course of several years and pre-existed
the compensable injury. Additionally, Dr. Bailey noted that
Dr. Schmidt did not make a finding of acute radiculopathy
when examining Mr. Stowers shortly after the compensable
Office of Judges affirmed the claims administrator's
March 12, 2015, decision in its Order dated October 26, 2015.
On May 2, 2016, the Board of Review affirmed the conclusions
of the Office of Judges.
Office of Judges found that the issue of compensability of
the lumbar disc herniation was fully litigated through its
September 26, 2014, Order denying Dr. McCormick's request
to add an L4-5 disc herniation as a compensable diagnosis.
The Office of Judges then noted that in its prior September
26, 2014, Order, it relied upon Dr. Schmidt's
determination that on December 19, 2013, Mr. Stowers
sustained an acute musculoskeletal mechanical back and hip
sprain superimposed on degenerative spondylotic arthropathy
and multiple levels of disc herniations in the lower back.
The Office of Judges further noted that Mr. Stowers did not
appeal the September 26, 2014, Order to the Board of Review.
Further, the Office of Judges found that because the issue of
the compensability of the lower back has already been fully
litigated, the doctrine of res judicata is applicable. The
Office of Judges then concluded that Dr. Landis's request
to add a lumbar disc herniation as a compensable diagnosis
was properly denied. The Board of Review declined to adopt
the reasoning of the Office of Judges, and determined that
the evidence of record fails to demonstrate that a lumbar
disc herniation should be added as a compensable component of
appeal, Mr. Stowers asserts that the issue of the
compensability of the lumbar disc herniation has not been
fully litigated. Specifically, he asserts that the request
from Dr. Landis to add a lumbar disc herniation as a
compensable diagnosis was not considered in the Office of
Judges' September 26, 2014, Order. In its September 26,
2014, Order, the Office of Judges evaluated Dr.
McCormick's request to add a lumbar disc herniation as a
compensable diagnosis and, after reviewing the evidentiary
record, determined that the request should be denied. In his
diagnosis update request, Dr. Landis requested the addition
of the very diagnosis which was requested by Dr. McCormick.
However, even if the evidence received from Dr. Landis, along
with Dr. Bailey's records review, are considered, the
evidence of record fails to demonstrate that Mr. Stowers
sustained a lumbar disc herniation at the time of the
compensable injury. As was noted by Dr. Bailey, diagnostic
imaging performed immediately following the injury revealed
extensive degenerative disease. Additionally, Mr.
Stowers's neurosurgeon, Dr. Schmidt, attributed only a
musculoskeletal back and hip sprain to the December 19, 2013,
injury. As such, the Board of Review properly determined that
the diagnosis of a lumbar disc herniation should not be added
as a compensable diagnosis.
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the ...