Appeal No. 2051090, Claim No. 2015025184
Deborah Bolen, by Reginald D. Henry, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Raleigh County Board of Education, by Steven
K. Wellman, its attorney, filed a timely response.
issue on appeal is two-part. The first issue is whether
lumbar radiculopathy should be held a compensable component
of the claim, and the second is whether the request for
physical therapy treatments should be granted. This appeal
originated from the July 6, 2015, and July 17, 2015, claims
administrator's decisions which denied the request to add
lumbar radiculopathy to the claim and denied the request for
physical therapy treatments, respectively. In its February 4,
2016, Order, the Workers' Compensation Office of Judges
affirmed the decisions. The Board of Review's Final Order
dated June 28, 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
Bolen, a special education aid, injured her back when she was
helping to restrain a student at a bus stop on March 9, 2015.
Ms. Bolen was examined by Rocky Sexton, D.C., who diagnosed a
sprain/strain of the lower back. An MRI was ordered and then
performed on March 17, 2015. The MRI revealed concentric
bulging and left lateral protrusion of the L3-4 and L4-5
intervertebral discs, along with marginal osteophytes
resulting in encroachment on the left lateral recesses, and
possible nerve root impingement. There was mild concentric
bulging of the L5-S1 intervertebral discs. There was also
mild encroachment at L2-3 lateral recesses by combination of
lateral disc bulging and small marginal osteophytes. Dr.
Sexton completed a diagnosis update in which he requested
that the claims administrator add lumbar intervertebral disc
syndrome to the claim as the MRI showed multiple disc bulges
with left lateral protrusions. The claims administrator held
the claim compensable for lumbar sprain on March 26, 2015.
The claims administrator specifically denied lumbar
intervertebral disc syndrome as a compensable component
because it was degenerative in nature.
Bolen underwent an EMG/nerve study performed by Barry K.
Vaught, M.D., on April 26, 2015. Mr. Vaught noted mild
electrophysiological evidence for S1 radiculopathy on the
left. On May 5, 2015, Ms. Bolen underwent an independent
medical evaluation performed by Jerry Scott, M.D. Dr. Scott
diagnosed lumbar sprain/strain superimposed on pre-existing
degenerative disease of the lumbar spine. He noted that the
MRI outlined Ms. Bolen's significant pre-existing
degenerative disease, which was fairly diffuse throughout the
lumbar spine. Dr. Scott opined that the medical evidence
established a causal link between the work-related injury and
the lumbar spine. However, Dr. Scott did not believe there
was a causal link with Ms. Bolen's disc disease, which
appeared to be degenerative. Dr. Scott believed that Ms.
Bolen had reached maximum medical improvement and that no
further treatment related to the compensable injury was
necessary. Any treatment related to the disc disease would
not be related to the compensable injury.
Bolen sought treatment from Heather Conway, FNP-BC, for her
low back pain on May 8, 2015. Ms. Conway's impression was
displacement of lumbar intervertebral disc without
myelopathy, for which she recommended physical therapy.
Subsequently, on June 26, 2015, Dr. Sexton completed another
diagnosis update in which he requested to add lumbar
intervertebral disc syndrome and lumbar radiculopathy to the
claim. Dr. Sexton stated that Ms. Bolen had some pre-existing
lumbar degenerative changes but had an acute herniated disc.
All signs pointed to the disc pressing on the nerve from the
lumbar region, including numbness and muscle weakness into
the left leg, which he attributed to the compensable injury.
On July 6, 2015, the claims administrator denied the request
to add lumbar radiculopathy to the claim. Shortly thereafter,
on July 17, 2015, the claims administrator also denied the
request for three months of physical therapy for the lumbar
Sexton authored a treatment note on September 5, 2015,
detailing Ms. Bolen's medical history. Dr. Sexton noted
that over the past eight years he treated Ms. Bolen
periodically for migraines and tension headaches. In that
time period, Ms. Bolen only occasionally mentioned mild low
back pain from 2013 to 2014. The symptoms were never severe
enough that Dr. Sexton felt the need to order an x-ray or
MRI. Ms. Bolen always responded to conservative treatment.
However, Dr. Sexton related that he saw a change in Ms.
Bolen's symptomology after the work-related incident. She
developed severe left leg pain and numbness, left groin pain,
left lower abdomen pain and swelling, along with urinary
incontinence. Upon examination after the injury, Dr. Sexton
noted that Ms. Bolen exhibited all the signs and orthopedic
findings of a lumbar disc injury. Dr. Sexton opined that the
EMG study performed by Dr. Vaught would have been more
telling if performed at the time of the injury or shortly
thereafter. As it was, Ms. Bolen underwent the study after
already receiving treatment and experiencing significant
February 4, 2016, the Office of Judges affirmed both the July
6, 2015, and July 17, 2015, claims administrator decisions.
The Office of Judges noted that on March 26, 2015, the claims
administrator held the claim compensable for lumbar
sprain/strain. The Order specifically noted that lumbar
intervertebral disc syndrome was not compensable as it was
degenerative in nature. Because Ms. Bolen never protested
that Order, the Office of Judges noted that the rejection of
that condition was final. Thus, the only remaining
compensable condition was lumbar sprain, which does not
result in lumbar radiculopathy. The Office of Judges noted
that Dr. Scott opined that Ms. Bolen had evidence of
significant pre-existing degenerative disease of the lumbar
spine, which was supported by the MRI results. Because the
lumbar intervertebral disc syndrome was pre-existing and
degenerative in nature, it was not compensable. Thus, as
lumbar radiculopathy was a result of this non-compensable
condition, it also could not be held compensable. As for the
requested physical therapy treatments, the Office of Judges
noted that the impression of Ms. Conway was lumbar
intervertebral disc without myelopathy, for which she
recommended physical therapy. As mentioned, the Office of
Judges determined that lumbar intervertebral disc syndrome
was not compensable, and thus, any treatment of that
non-compensable condition cannot be authorized. Accordingly,
the Office of Judges found that the condition of lumbar
radiculopathy was not compensable and would not be added to
the claim, nor would the physical therapy treatments be
granted. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on June 28, 2016.
agree with the reasoning and conclusion of the Office of
Judges as affirmed by the Board of Review. The evidence of
record establishes that Ms. Bolen's lumbar radiculopathy
is related to her non-compensable lumbar intervertebral disc
syndrome, not the work-related injury, and thus cannot be
held compensable. The requested physical therapy sessions are
aimed at treating Ms. Bolen's non-compensable conditions
and cannot be authorized.
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 evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED IN BY Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. ...