MICHAEL S. PLASO, Claimant Below, Petitioner
CITY OF WEIRTON, Employer Below, Respondent
Appeal No. 2051053) (Claim No. 2012014085)
Michael S. Plaso, by Christopher J. Wallace, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. The City of Weirton, by Lisa
Warner Hunter, its attorney, filed a timely response.
issue on appeal is whether cervical disc displacement is a
compensable condition of the claim and whether an anterior
cervical discectomy and fusion should be approved. On
September 4, 2013, the claims administrator denied a request
to add cervical disc displacement as a compensable condition.
On May 8, 2014, the claims administrator denied authorization
for an anterior cervical discectomy and fusion. The Office of
Judges affirmed both of the claims administrator's
decisions on January 26, 2016. The Board of Review affirmed
the Order on June 27, 2016. 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
Plaso, a police officer for the City of Weirton, was involved
in a motor vehicle accident in the course of his employment
on October 1, 2011. On October 4, 2011, Stephen Mascio, D.O.,
stated that Mr. Plaso was in his police cruiser when he was
hit head on by a drunk driver while working. Although he was
wearing his seat belt, he hit his head on the roof of the
car. Though he did not lose consciousness, he was foggy after
the accident and was taken to the hospital and assessed with
a mild concussion. Mr. Plaso had a CT of the cervical spine,
head, abdomen, and pelvis. He complained of neck pain and
stiffness, bilateral shoulder pain, bilateral lower rib pain,
and low back pain radiating down the back of both upper legs.
He had loss of train of thought at times, continuous
headaches on the left side, and constant ringing in his left
ear since the accident. After examination, Dr. Mascio
diagnosed a concussion, left-sided tinnitus, tension
headaches, strain of the upper arms and shoulders, spasm of
the shoulders/neck/back, strain of the
lumbar/cervical/thoracic spine, and lumbar radiculopathy. He
was given medications and a treatment plan. The claims
administrator held the claim compensable for a concussion,
shoulder sprain, lumbar sprain, thoracic sprain, and a neck
sprain/strain on October 10, 2011.
performed on October 26, 2011, showed a mild central disc
protrusion at the C5-6 and C6-7 without significant stenosis
or obvious nerve root compression. There was some mild
spurring at these levels and possible spasm. An MRI performed
on October 18, 2012, showed a mild central disc protrusion at
C5-6 and C6-7 without significant stenosis or change since
the October 26, 2011, MRI. A March 5, 2013, evaluation
authored by Peter Gerszten, M.D., a neurosurgeon, argued that
Mr. Plaso's disc herniations resulted from the trauma of
his motor vehicle accident. Dr. Gerszten stated that his
surgery revealed pathology consistent with his complaints.
Further, the fact that Mr. Plaso woke up the next day with
complete resolution of his arm symptoms suggested that the
injury was work related and acute in nature.
Roig, M.D., completed a diagnosis update on August 22, 2013,
which listed the primary diagnosis of neck strain and
secondary diagnosis of a herniated disc. Mr. Plaso stated
that he had neck pain with radiation down his left arm. Dr.
Roig opined that the MRI scans support his complaints. On
September 4, 2013, the claims administrator denied the
diagnostic updated request from Dr. Roig to add displacement
of a cervical disc as a compensable component of the claim.
Mr. Plaso subsequently underwent an anterior cervical
discectomy and fusion at C5-6 and C6-7, which was denied by
the claims administrator on May 8, 2014.
September 25, 2014, Christopher Martin, M.D., completed a
record review report. He previously performed two independent
medical evaluations on Mr. Plaso and generated several other
reports. He was requested by the employer to offer an opinion
as to what the current diagnoses are and which are associated
with the compensable injury. Dr. Martin opined that Mr. Plaso
did not suffer any cervical disc displacement or herniation
related to the compensable injury. As a result, he believed
the cervical surgery should not be covered under the claim.
He noted that there was evidence of pre-existing structural
abnormalities in the two levels of the cervical spine.
January 9, 2015, Bruce Guberman, M.D., completed an
independent medical report. Dr. Guberman believed that the
disc herniation noted on MRI at C5-6 and C6-7 were caused by
the compensable injury. Mr. Plaso was asymptomatic in regard
to the cervical spine until that time and did not have any
radicular complaints until that injury. The disc herniations
at those levels correspond well with the side and location of
his radicular symptoms, which also began specifically at that
time. Mr. Plaso's symptoms have been consistent with
pain, numbness, tingling, and weakness in his left arm and
hand even though not all of the examiners have found
reproducible objective neurologic findings. The nature of the
injury, the sudden and coincident onset of radicular symptoms
and neck pain with the injury, and the consistent findings on
the MRI of the cervical spine strongly indicate that the disc
herniations, neck pain, and radicular symptoms are all
directly causally related to the compensable injury. Dr.
Guberman noted that there were degenerative changes that
likely predated this injury; however, he opined they were
very common and did not correlate well with his other
symptoms. Since it is his opinion that the disc herniations
and radiculopathy were directly causally related to this
injury, and since Mr. Plaso did not improve with extensive
conservative treatment, Dr. Guberman agreed surgery was
February 18, 2015, Dr. Martin was deposed and opined that the
MRI findings suggested that Mr. Plaso's symptoms were not
related to the compensable injury. He opined that if an MRI
was taken directly before the injury, it would have been
similar to the one taken after the injury. He believed the
changes seen on the MRI were age-related degeneration. Dr.
Martin then discussed the many other conflicting reports and
ultimately concluded that those reports supported his
position that the herniations were not caused by the
compensable injury. Further, because the herniations were not
caused by the compensable injury, it was proper for the
surgery to not be covered under workers compensation.
Soulsby, M.D., examined Mr. Plaso on June 8, 2015, and
determined that he suffered from degenerative disc disease of
the cervical spine with radiculopathy and cervical
sprain/strain. He concurred with Dr. Gerszten's opinion
that Mr. Plaso suffered from ongoing cervical radiculopathy
and that it responded well to surgical management. However,
Dr. Soulsby did not agree that the evidence suggested the
disc herniations were caused by the compensable injury. Dr.
Soulsby found that there were strong objective findings that
the herniation predated the injury. Though the surgical
intervention appeared to have been necessary and successful,
it was performed for a pre-existing condition and was not
related to the compensable injury. He agreed with Dr.
Martin's reasoning that the presence of degenerative disc
changes and bone spurs at the exact levels where the
herniation occurred is strong evidence that these herniations
are pre-existing. Dr. Soulsby also noted that Mr. Plaso was
previously a power lifter, which has a high probability of
cervical spine degeneration.
Office of Judges concluded that Mr. Plaso failed to show that
his disc herniations were due to the compensable injury. The
Office of Judges noted that pre-injury MRI scans showed
pre-existing age-related degeneration of the spine. The
Office of Judges also noted that both Dr. Soulsby and Dr.
Martin determined that the herniations were not related to
the compensable injury. The Office of Judges recognized that
Dr. Guberman and Dr. Gerszten believed that the herniations
were related to the compensable injury. However, the Office
of Judges did not rely on their opinions because the evidence
of record more closely aligned with the opinions of Dr.
Soulsby and Dr. Martin. Mr. Plaso did suffer from
pre-existing degenerative changes and he did not seek to add
the herniations to the compensable diagnoses until well after
the compensable injury. Because the Office of Judges
concluded the disc herniations were not caused by the
compensable injury, the surgery to correct the disc
herniations was also denied. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order.
review, we agree with the consistent decisions of the Office
of Judges and Board of Review. While two doctors have opined
that the disc herniations could be related to the compensable
injury, the majority of the evidence indicates that it was a
natural process. The MRI scans, as well as the opinions of
Dr. Soulsby and Dr. Martin, support a finding that Mr.
Plaso's disc hernations were related to his pre-existing
degenerative conditions. It is particularly compelling that
Dr. Martin has had the opportunity to evaluate Mr. Plaso
multiple times and his opinion has remained the same.
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 ...