Appeal No. 2050922) (Claim No. 2010110134)
Gregory Snodgrass, by J. Robert Weaver, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. West Virginia Division of Juvenile Services
- Gene Spadaro Center, by H. Dill Battle III, its attorney,
filed a timely response.
issue on appeal is whether further temporary total disability
benefits should be granted in this claim. This appeal
originated from the December 20, 2013, claims
administrator's decision denying temporary total
disability benefits. In its November 3, 2015, Order, the
Workers' Compensation Office of Judges affirmed the
decision. The Board of Review's Final Order dated April
13, 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
Snodgrass, a correctional officer, was injured in the course
of his employment while trying to restrain a juvenile inmate
on October 6, 2009. There was no evidence of acute fracture,
vertebral malalignment, or focal bony lesion. On October 13,
2009, the claims administrator held the claim compensable for
lumbosacral sprain/strain and granted temporary total
disability benefits from October 7, 2009, through October 15,
2009. Mr. Snodgrass remained off work for approximately a
week and a half and took prescribed medication for two weeks.
Snodgrass performed his duties at the same position for
approximately seventeen months without trouble until he began
experiencing low back pain in March of 2011. He was treated
at Barboursville Physical Therapy on March 9, 2011, when it
was noted his problems began three weeks prior for no
apparent reason. Mr. Snodgrass continued to work until
January 26, 2012, when he could no longer perform his duties.
At that time, Mr. Snodgrass filed an application to reopen
his claim regarding the October 6, 2009, injury.
Snodgrass has an extensive history of back pain. On March 21,
2000, Mr. Snodgrass injured his low back in the course of his
employment. His claim was eventually held compensable for
lumbosacral joint ligament. On April 6, 2000, an MRI of the
lumbar spine demonstrated degenerative disc changes at L4-5.
Mr. Snodgrass underwent a microdiscectomy performed by David
Weinsweig, M.D., on July 18, 2001. He was eventually granted
a 19% permanent partial disability award based on the
independent medical evaluation of Bruce Guberman, M.D., who
evaluated Mr. Snodgrass following his March 21, 2000, injury.
Mr. Snodgrass eventually had to undergo a second procedure
performed by Dr. Weinsweig on May 15, 2006. In a follow-up,
Dr. Weinsweig noted that Mr. Snodgrass was doing quite well
overall. Mr. Snodgrass underwent another independent medical
evaluation performed by Dr. Guberman on September 18, 2006.
His impression was acute and chronic lumbosacral strain,
post-traumatic status post laminectomy and discectomy at the
L4-5 level (two times). Dr. Guberman found Mr. Snodgrass had
reached maximum medical improvement and assessed 12%
impairment. However, because Mr. Snodgrass had already
received a 19% permanent partial disability award for this
injury, no further compensation was necessary.
February 1, 2012, the claims administrator denied Mr.
Snodgrass's request to reopen the claim regarding the
October 6, 2009, injury. Mr. Snodgrass saw Dr. Weinsweig for
a neurological consultation on April 11, 2012. Dr. Weinsweig
noted that Mr. Snodgrass had done well following the 2001 and
2006 procedures but suffered an injury in 2009 and now had
recurrent back pain. Dr. Weinsweig found Mr. Snodgrass
suffered from recurrent lumbar radiculopathy that was
temporally related to the October 6, 2009, work injury.
Guberman performed another independent medical evaluation of
Mr. Snodgrass on November 26, 2012. Dr. Guberman's
impressions were acute lumbar strain occurring at work on
October 6, 2009; chronic low back pain following injury at
work on March 21, 2000; status post left L4-5 lumbar
microdiscectomy on July 18, 2001; status post left L4-5
re-exploration for microdiscectomy on May 15, 2006; and
residual disc protrusion or granulation tissue at L4-5 on the
left by an MRI scan performed on April 29, 2011. Dr. Guberman
opined that Mr. Snodgrass's current symptoms were more
likely related to the initial March 21, 2000, injury. He
found Mr. Snodgrass suffered no impairment as a result of the
October 6, 2009, injury.
7, 2013, the Office of Judges reversed the February 1, 2012,
claims administrator's decision denying temporary total
disability benefits. The Office of Judges granted the
benefits from January 26, 2012, through April 26, 2012, and
authorized a referral to Dr. Weinsweig.
18, 2013, Mr. Snodgrass saw Gregory Elkins, M.D. Dr. Elkins
diagnosed displacement of the lumbar intervertebral disc
without myelopathy; sprains and strains of the sacroiliac
regions; and lumbosacral joint ligament. Dr. Elkins helped
Mr. Snodgrass complete a form to reopen his claim and
indicated that he continued to be disabled from February 27,
2012, to the present. Dr. Elkins advised that Mr. Snodgrass
continued to suffer a worsening pain and tenderness in his
back and leg.
was performed on Mr. Snodgrass's lumbar spine on August
5, 2013. The MRI revealed a stable appearance with mild
degenerative changes and no central stenosis or significant
foraminal narrowing. Dr. Weinsweig subsequently saw Mr.
Snodgrass for low back pain on September 11, 2013. An x-ray
taken that day revealed degenerative disc disease changes and
underlying canal stenosis was suspected. Dr. Weinsweig's
impression was that Mr. Snodgrass suffered from chronic pain
with an element of radiculopathy due to degenerative disc
disease mainly at L4-5.
November 5, 2013, Rebecca Thaxton, M.D., performed a
physician review. She advised that the evidence of record
indicated that Mr. Snodgrass's current off-work status
was due to degenerative spine disease and not the
work-related injury. Based on Dr. Thaxton's report, the
claims administrator denied temporary total disability
benefits on December 20, 2013.
April 10, 2014, Dr. Guberman performed a record review and
continued to opine that Mr. Snodgrass's current symptoms,
findings of radiculopathy, and possible need for surgery were
related to the March 21, 2000, injury. The abnormal findings
were present when Dr. Guberman evaluated Mr. Snodgrass on
September 18, 2006, prior to the subject injury. On November
5, 2014, Dr. Guberman testified at a deposition that he had
the opportunity to examine Mr. Snodgrass three times since
his first injury in 2000. Dr. Guberman noted that each time
he had examined Mr. Snodgrass, his complaints had been
relatively the same. Dr. Guberman did not agree with Dr.
Weinsweig's prior April 11, 2012, statement attributing
Mr. Snodgrass's symptoms to the October 6, 2009, injury.
Dr. Guberman did ...