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Tomblin v. Conway Freight, Inc.

Supreme Court of West Virginia

June 8, 2017

DARECK L. TOMBLIN, Claimant Below, Petitioner
CONWAY FREIGHT, INC., Employer Below, Respondent

         (BOR Appeal No. 2050896) (Claim No. 2011034070)


         Petitioner Dareck L. Tomblin, by William R. Wooten and Melissa R. Lyons, his attorneys, appeals the decision of the West Virginia Workers' Compensation Board of Review. Conway Freight, Inc., by T. Jonathan Cook, its attorney, filed a timely response.

         The issue on appeal is whether vertigo of central origin, lumbar degenerative disc disease, degeneration of the cervical disc, benign paroxysmal positional vertigo, and peripheral autonomic neuropathy are compensable conditions. The claims administrator denied the request to add vertigo of central origin to the claim on November 27, 2013. Thereafter, the claims administrator denied the request to add lumbar degenerative disc disease, degeneration of the cervical disc, benign paroxysmal positional vertigo, and peripheral autonomic neuropathy to the claim on April 28, 2014. The Office of Judges affirmed the claims administrator's decisions on October 2, 2015. The Board of Review affirmed the Order of the Office of Judges 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.

         This 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 Procedure.

         Mr. Tomblin, a truck driver for Conway Freight, Inc., was involved in a tractor trailer accident at work on April 12, 2011. Mr. Tomblin injured the left side of his back, ribs, and elbow. He was treated at MedExpress and diagnosed with a left chest contusion. On April 15, 2011, Mr. Tomblin sought medical treatment at Saint Francis Hospital. The medical records indicate he was seen with complaints of left rib and lung pain. An x-ray of the left ribs revealed a fracture of the left tenth rib anterolaterally with no pneumothorax or hemothorax. It also revealed some degenerative change in the shoulders and spine. The claims administrator held the claim compensable for a chest wall injury on April 22, 2011.

         From April of 2011 through January of 2014 Mr. Tomblin was treated at Lincoln County Primary Care for follow-ups. The notes indicate that Mr. Tomblin suffered a fractured left rib and had some torn chest wall muscles, contusions, and possible bruising of the kidney. He was due to return back to work in May of 2011. He developed back pain and was treated by Dr. Werthammer for degenerative disc disease. In April of 2013, Mr. Tomblin began complaining of vertigo. He was diagnosed with peripheral autonomic neuropathy, displacement of thoracic or lumbar intervertebral disc without myelopathy, lumbar intervertebral disc without myelopathy, and degeneration of cervical intervertebral disc. It was noted that Mr. Tomblin continued to have cervical and lumbar back pain and associated vertigo. He also had difficulty with neuropathy causing weakness and numbness to his lower extremities. He had a previous evaluation with Matthew Werthammer, M.D., who indicated Mr. Tomblin was non-operable. Pain management and balance training were recommended.

         On May 10, 2011, Kevin Milam, M.D., saw Mr. Tomblin for follow-up. He noted he was feeling a lot better but still not at full capacity. He indicated he was a little worried that he would not be able to perform up to par because his job entails lifting, pulling, twisting, and other movements likely to cause him further injury and pain. He was worried that if he were not able to perform his job correctly it could cause problems with his employer. The assessment was left-sided rib fracture, resolving. The notes indicate Mr. Tomblin was doing well and should be able to return to full duties the following Monday. On March 15, 2012, Mr. Tomblin underwent a nerve conduction study which revealed results consistent with carpal tunnel syndrome; however, it was deemed an abnormal study. It was noted Mr. Tomblin had previously had carpal tunnel release surgery. There was also evidence consistent with mild chronic right cervical radiculopathy. Involvement of the C5 and/or C7 could not be excluded. It also stated that Mr. Tomblin had a double crush or two separate conditions that may result in upper extremity pain and similar sensory symptoms.

         An MRI performed on September 19, 2012, revealed disc osteophyte complex throughout the cervical spine and advanced cervical spine degenerative disc disease causing moderate to severe degrees of central canal and foraminal stenosis. Central canal stenosis was most severe at C6-7. An age of injury analysis from Diagnostic Dating Specialists, LLC, stated that all MRI scans showed a chronic degenerative process rather than any acute injury.

         On October 22, 2012, Dr. Werthammer performed a neurosurgical consultation. Mr. Tomblin presented with worsening neck and arm pain. He reported pain extending from the posterior cervical region into the shoulder and down the arm with intermittent numbness and tingling in his hands. It was noted that he had previously undergone a carpal tunnel release. He denied gait instability, clumsiness, or incoordination. He reported some burning in the lateral aspect of both legs. The impression was degenerative cervical spinal disease with chronic neck and intermittent arm pain. Dr. Werthammer recommended Mr. Tomblin undergo cervical physical therapy to include traction and for arrangements to be made for him to see a pain specialist and possibly undergo a series of injections. He was also prescribed medications.

         A lumbar MRI performed on January 31, 2013, revealed prominent diffuse disc bulging at the L2-3, L3-4, and L4-5 levels. There was moderate acquired canal stenosis. Neural foraminal narrowing was most significant at L4-5. On February 18, 2013, Dr. Werthammer saw Mr. Tomblin for a follow-up. Mr. Tomblin had not started his physical therapy nor was he able to be seen at the pain clinic. Mr. Tomblin had considerable issues with his low back most recently as well as vertigo. The plan called for Mr. Tomblin to see an otolaryngologist regarding his vertigo, begin physical therapy both for the neck and low back, and be referred to a pain specialist.

         From February of 2012 through February of 2013 Mr. Tomblin was treated at Coalfield Health Center. The assessment was bilateral upper extremity numbness and edema, hypertension, carpal tunnel syndrome, cervical radiculopathy, cervicalgia, and lumbago. It was recommended that Mr. Tomblin undergo a nerve conduction study, an MRI of the spine, a referral to an orthopedic physician, and pain management. The records do not indicate a positive finding for vertigo. On February 5, 2013 a positive finding of dizziness which occurs suddenly was reported.

         Marsha Bailey, M.D., completed an independent medical evaluation on July 18, 2013. Dr. Bailey's assessment was chest wall contusion and left tenth rib fracture which had resolved. She opined that Mr. Tomblin's spine pain, bilateral upper extremity pain and numbness, and lower extremity pain and numbness were unrelated to his compensable injury. Dr. Bailey noted Mr. Tomblin specifically denied back and neck pain in the early medical records and repeatedly denied head injury and loss of consciousness. His first complaint of bilateral hand numbness was not documented until February 20, 2012, which was over ten months following his injury. The vertigo was not documented for the first time until February 5, 2013. She noted the cervical and lumbar spine images revealed the degenerative changes one would expect for his age and weight. She found that he had no evidence of acute injury or herniated disc to support his complaints of pain and showed an extreme amount of symptom magnification. Dr. Bailey opined that he was at maximum medical improvement and did not suffer from any ratable whole person impairment.

         Mr. Tomblin was seen at Huntington Ear, Nose, & Throat Specialists on July 25, 2013. The treatment notes indicated that Mr. Tomblin was being seen for balance issues. It was noted that he had an average of five or six attacks a week of a spinning sensation which caused staggering, nausea, and occasionally vomiting. The attacks themselves lasted only for a few minutes. He has a history of possible hearing loss on the left side with tinnitus in both ears for two or three years as well as history of tractor trailer accident two years ago in which he was unconscious for a short period of time. The impression was benign positional paroxysmal vertigo, site to be determined, and mild bilateral 4000 hertz sensorineural hearing loss. Hallpike Maneuver was attempted on two occasions with no nystagmus. The plan called for Mr. Tomblin to return in one month to determine on which side he gets dizzy. On November 27, 2013, the claims administrator denied the request to add vertigo as a compensable diagnosis.

         A January 2, 2014, treatment note from Thomas Jung, M.D., stated that Mr. Tomblin presented with complaints of vertigo, tinnitus, nausea, and vomiting. The severity was listed as severe and that the vertigo interfered with most of his daily activities. Aggravating factors included looking up, down, or backwards; rapid eye movement; rotating the head to the right; walking; and lying down. Relieving factors were holding very still. The assessment was benign paroxysmal positional vertigo and disequilibrium. The plan called for Mr. Tomblin to avoid working in hazardous or high places, avoid driving when dizzy, sleep with his head elevated for three days, and avoid rapid eye movements. The impression was probable benign ...

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