Appeal No. 2050851, Claim No. 2015019229
Billy Bledsoe, by Robert L. Stultz, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Murray American Energy, Inc., by Aimee M. Stern,
its attorney, filed a timely response.
issue on appeal is two-part. The first issue is whether the
cervical disc displacement should be held a compensable
component of the claim, and the second is whether the request
to reopen the claim for temporary total disability benefits
should be granted. This appeal originated from the March 25,
2015, and May 5, 2015, claims administrator's decisions
which denied the request to add the cervical disc
displacement to the claim and closed the claim for temporary
total disability benefits, respectively. In its September 23,
2015, Order, the Workers' Compensation Office of Judges
affirmed the decisions. The Board of Review's Final Order
dated March 24, 2016, affirmed the Order of the Office of
Judges. 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
Bledsoe, a coal miner, was injured in the course of his
employment on January 5, 2015, when he stood up from a
crouching position and struck his head on an overhead
waterline. On January 8, 2015, Mr. Bledsoe was still in pain
and sought medical treatment at Corporate Health at Wheeling
Hospital. Ross Tennant, FNP, examined Mr. Bledsoe. Mr.
Bledsoe reported that he initially felt like he "jammed
his neck" in the injury but over the course of the
following few days he also developed numbness and tingling in
his left hand. Mr. Tennant's impression was a closed head
injury and a cervical strain. An x-ray of the cervical spine
revealed Mr. Bledsoe had degenerative disc disease and
degenerative joint disease, most prominent at the C5-6 level.
Mr. Tennant recommended a cervical MRI and an EMG study of
Mr. Bledsoe's left upper extremity. Mr. Bledsoe was
placed on light duty.
Bledsoe's symptoms persisted and on January 13, 2015, he
saw Mr. Tennant for further treatment. Mr. Bledsoe had
experienced some headaches and episodes of dizziness. Mr.
Tennant's impression was closed head injury, cervical
strain, and post-concussive syndrome for which he was sent to
the emergency room. A CT scan of the brain revealed no acute
abnormalities. A CT scan of the cervical spine showed
degenerative disc disease with a disc osteophyte at C5-6. Mr.
Bledsoe underwent an MRI on January 15, 2015, which revealed
a right paracentral C5-6 disc herniation with cord
compression and C6-7 spurring, which caused some central
stenosis. On January 22, 2015, the claims administrator held
the claim compensable for neck sprain and head injury. Mr.
Bledsoe was granted temporary total disability benefits from
January 9, 2015, through March 9, 2015.
February 8, 2015, Mr. Bledsoe saw David Benjamin Cohen, M.D.,
for a neurosurgical consultation. Dr. Cohen assessed that Mr.
Bledsoe had generalized numbness of the upper left extremity
without any clear-cut radicular symptoms. After reviewing the
MRI taken on January 15, 2015, Dr. Cohen noted that he did
not believe cervical surgery was indicated. He prescribed
physical therapy and an anti-inflammatory medicine. Mr.
Bledsoe followed up with Mr. Tennant on February 10, 2015.
Mr. Tennant opined that Mr. Bledsoe's continued symptoms
were most likely due to degenerative changes of the spine,
which had been documented in medical records as early as
February of 2013, when Mr. Bledsoe was first diagnosed with
radiculopathy. An EMG/NCS study performed on March 14, 2013,
showed chronic radiculopathy at C5-6. The study noted that
Mr. Bledsoe reported a history of neck pain radiating into
the right upper extremity.
February 16, 2015, an EMG/NCS study of Mr. Bledsoe's
upper left extremity was performed. Henry Kettler, M.D.,
interpreted the study and noted that it revealed carpal
tunnel syndrome, left ulnar neuropathy, acute changes in the
C6-7 nerve root distribution, and chronic changes in the C5-6
and C5 axillary nerve deltoid muscle. Dr. Kettler stated that
the findings suggested ongoing chronic processes. He opined
that a severe blow to Mr. Bledsoe's head and pressure on
the back of the head may have contributed to his nerve root
injury. Dr. Kettler explained that when compression occurs to
nerve roots distally and someone also has carpal tunnel
history, a double compression syndrome can result. The fact
that Mr. Bledsoe had this injury with some central stenosis
and cord compression would put him at risk of these features
developing with his type of injury. Mr. Tennant subsequently
requested that C5-6 disc herniation be added as a compensable
component of the claim.
March 10, 2015, Mr. Bledsoe was evaluated by Clark Milton,
D.O. Dr. Milton's impression included complaints of
paracervical and parascapular myalgias and arthralgias that
were musculoligamentous, multilevel cervical disc disease,
and triple or compressive neuropathies. Dr. Milton did not
believe surgical intervention was needed. He was hopeful a
few more weeks of physical therapy would resolve Mr.
Bledsoe's symptoms but stated it was a difficult
situation due to the multifactorial issues present.
March 20, 2015, Mr. Bledsoe underwent an independent medical
evaluation performed by Bill Hennessey, M.D. At the time of
the evaluation, Mr. Bledsoe had full range of motion in his
cervical spine and left shoulder. Dr. Hennessey diagnosed the
work-related injury as a closed head injury and cervical
spine sprain/strain. He believed that Mr. Bledsoe had reached
maximum medical improvement and opined that no further
treatment was necessary for the compensable injury. Dr.
Hennessey opined that Mr. Bledsoe had no permanent impairment
due to the compensable injury. On March 25, 2015, the claims
administrator denied cervical disc displacement as a
compensable component of the claim.
Bledsoe's symptoms persisted and he sought treatment from
Dr. Milton on April 20, 2015. An x-ray was taken and Dr.
Milton's impression was subacute chronic neck pain,
cervical strain/sprain which should have resolved,
degenerative disc disease, and an episode of weakness and
dizziness. Dr. Milton recommended Mr. Bledsoe follow-up with
his personal physician or a cardiologist. The claims
administrator closed the claim for temporary total disability
benefits on May 5, 2015.
Bledsoe testified in a deposition before the Office of Judges
on June 29, 2015, that he injured his back on January 5,
2015, when he stood up in a load of rock dust and struck his
head on a waterline. The impact broke his hardhat and he fell
to the floor, immediately feeling pain in his neck. Mr.
Bledsoe finished the shift and sought medical attention three
days later when his symptoms had not resolved. Mr. Bledsoe
underwent an MRI and an evaluation by Dr. Cohen, who opined
that surgery was not necessary. Mr. Bledsoe's symptoms
did not improve with physical therapy so he requested a
second neurosurgical opinion. His appointment with Dr.
Hennessey lasted only ten minutes and no measurements of the
spine were taken. Mr. Bledsoe complained of continued
symptoms of numbness and tingling in his left hand and
testified he never experienced these prior to the compensable
17, 2015, Dr. Hennessey performed a record review and opined
there was insufficient evidence of any injury occurring to
the cervical disc or neck on January 5, 2015. Objective
medical evidence revealed normal x-rays without any
post-traumatic findings. Dr. Hennessey pointed out that Mr.
Bledsoe has a significant history of pre-existing neck pain
and cervical radiculopathy dating back to 2013. Dr. Hennessey
opined the mechanism of injury was consistent with cervical
strain and nonspecific head injury and that he saw no
evidence of any additional condition related to the injury.
September 23, 2015, the Office of Judges affirmed the claims
administrator's decisions denying cervical disc
displacement as a compensable component of the claim and
closing Mr. Bledsoe's claim for temporary total
disability benefits. The Office of Judges found that although
there was objective imaging evidence of a disc herniation, no
medical evidence suggested a causal connection to the
work-related injury. The medical evidence of record indicates
that Mr. Bledsoe's herniation was caused by naturally
occurring degenerative disease rather than the injury. The
Office of Judges noted that both Dr. Milton and Mr. Tennant
opined Mr. Bledsoe's symptoms were related to his
pre-existing conditions. The disease was documented in 2013
when an MRI showed chronic radiculopathy at C5-6. Similarly,
a CT scan taken after the injury shows degenerative disc
disease at C5-6. The Office of Judges determined Mr. Bledsoe
failed to show by a preponderance of the evidence that the
disc herniation should be added to the claim. The Office of
Judges also noted that West Virginia Code §23-4-7a
(2005) suspends temporary total disability benefits at the
earliest of either the claimant reaching maximum medical
improvement, the claimant being released to work, or the
claimant returning to work. Dr. Hennessey placed Mr. Bledsoe
at maximum medical ...