PHILIP J. CONLEY, Claimant Below, Petitioner
PARKWAYS ECONOMIC DEVELOPMENT & TOURISM AUTHORITY, Employer Below, Respondent
Appeal No. 2051113 (Claim No. 2015006212)
Philip J. Conley, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Parkways Economic Development & Tourism
Authority, by H. Dill Battle III, its attorney, filed a
issue on appeal is whether cervical radiculopathy should be
added as a compensable component of the claim. The claims
administrator denied the request to add cervical
radiculopathy as a compensable condition of the claim on
September 21, 2015. The Office of Judges affirmed the claims
administrator's decision on February 19, 2016. The Board
of Review affirmed the Order of the Office of Judges on
August 26, 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
Conley, a foreman for the Parkways Economic Development &
Tourism Authority, injured his shoulder and knee in the
course of his employment on August 21, 2014, when he fell
down an embankment. The claim was held compensable for a left
shoulder strain and knee sprain on September 2, 2014. Mr.
Conley has an extensive history of pre-existing shoulder and
back issues. A March 17, 2006, progress note from Lora
Keaveny, D.O., stated that Mr. Conley was seen with a chief
complaint of left shoulder pain. Physical examination
revealed head and neck swelling. There was tenderness in the
left scapula and trapezius muscles and swelling in the
thoracic spine from T7 through T11. Dr. Keaveny's
assessment was thoracic sprain and left shoulder pain.
October of 2013, Mr. Conley was treated by Brian Yee, D.O.,
with complaints of constant neck pain. Mr. Conley was given
trigger point injections in the cervical, thoracic,
interscapular, and subscapular regions. Mr. Conley returned
again in October, November, and December of 2013, with
similar complaints. A December 31, 2013, MRI of Mr.
Conley's left shoulder revealed a partial substance tear
of the supraspinatus tendon, a tear of the superior glenoid
labrum at the bicipital tendon anchor, and mild AC joint
Keaveny saw Mr. Conley for severe left shoulder pain in
January of 2014. Mr. Conley was diagnosed with a left
shoulder sprain and degenerative joint disease of the left
shoulder. Dr. Yee saw Mr. Conley in March, April, June, and
July of 2014 with continued left shoulder pain. Dr. Yee noted
that a recent MRI revealed a tear of the left superior
glenoid labrum at the bicipital tendon anchor. The assessment
was lumbar radiculopathy and injury of left rotator cuff
muscles and tendons. Mr. Conley was prescribed Lortab and
referred to an orthopedic surgeon for evaluation of his
labrum/biceps tear. Mr. Conley was also given trigger point
injections in the left thoracic paraspinal muscles, left
rhomboid, and trapezius muscles. On August 18, 2014, only
three days prior to the compensable injury, Mr. Conley was
seen with complaints of upper back and left shoulder pain.
the compensable injury on August 26, 2014, Mr. Conley
attended a follow-up with Dr. Keaveny. No mention was made of
any neck issues. Physical examination revealed limited range
of motion and tenderness in the left shoulder. There was also
some tenderness in the thoracolumbar spine with swelling from
T2 through T4. Dr. Keaveny's assessment was left rotator
cuff sprain, lumbar radiculopathy, and left knee sprain. An
MRI of Mr. Conley's left shoulder and lumbar spine was
performed on September 6, 2014, which revealed supraspinatus
and infraspinatus tendinitis with impingement. There was no
evidence of a rotator cuff or labral tear.
September 9, 2014, Dr. Keaveny saw Mr. Conley for another
follow-up wherein Mr. Conley complained of pain in his lumbar
spine and left and right shoulder. He did not report any
complaints about his neck. Physical examination revealed
limited range of motion and swelling in the left shoulder.
There was swelling in the thoracic spine with muscle spasms
from T1 through T3. Physical examination of the neck revealed
no abnormal findings. The assessment was pain in the left
shoulder joint and lumbar radiculopathy. Mr. Conley reported
back on September 23, 2014, with left shoulder pain and
stiffness in his back. At this time, Mr. Conley reported he
had started having some pain in his neck. Physical
examination of the neck revealed no abnormal findings.
Examination of the left shoulder revealed limited range of
motion, muscle spasms and tenderness. The assessment was left
rotator cuff sprain, lumbar radiculopathy, and left shoulder
joint pain. Physical therapy was recommended for the left
shoulder. Physical therapy records from October 29, 2014,
indicated Mr. Conley was receiving treatment for his left
shoulder and indicated that he believed he overdid it pulling
his bow the day prior.
Grady, M.D., completed an independent medical evaluation of
Mr. Conley on February 11, 2015. Dr. Grady noted that Mr.
Conley had injured his left shoulder, left knee and left leg
after sustaining a work-related fall. At the time of the
evaluation, Mr. Conley complained of left shoulder and low
back pain. Mr. Conley attributed his low back symptoms to a
prior low back injury and noted that the low back was not
part of his workers' compensation claim. Mr. Conley also
reported some numbness and tingling in his left hand. Mr.
Conley indicated that his left knee injury had resolved
without any residual problems. Physical examination revealed
decreased range of motion in both shoulders, which Mr. Conley
attributed to discomfort in his mid-back. Dr. Grady concluded
that Mr. Conley's compensable work injury resulted in a
resolved left knee sprain and left shoulder tendinitis with
some residual thoracic myofascial pain. He found that Mr.
Conley reached his maximum medical improvement and suffered
no ratable impairment.
conduction study report completed on February 12, 2015,
indicated that the study was abnormal. However, there was
electrophysiologic evidence for an active S1 radiculopathy on
the left. The record did not contain an interpretation of an
upper extremity nerve conduction study. A March 10, 2014, MRI
of Mr. Conley's cervical spine revealed multilevel mild
degenerative disc bulges. There was no evidence of a
herniated disc or high-grade stenosis. An April 21, 2015,
nerve conduction study of the Mr. Conley's lower
extremities revealed an active S1 radiculopathy on the left.
13, 2015, a progress note from Rajesh Patel, M.D., indicated
that Mr. Conley was seen for a follow-up for his lower back,
neck, and arm. Using a pain scale of one to ten, Mr. Conley
reported a five for his neck and an eight for his lower back.
Sensation in the upper extremities was intact to light touch.
Dr. Patel noted that a recent nerve conduction study showed
an active left C5-6 radiculopathy. He further noted that a
recent cervical MRI revealed bulging at C5-6 with neural
foraminal narrowing on the left. Dr. Patel's assessment
was cervical disc bulging, cervical neural foraminal stenosis
at C5-6, cervical radiculitis, lumbar radiculitis, lumbar
degenerative disc disease, and left S1 radiculopathy. Dr.
Patel recommended that all conservative treatment options be
exhausted before considering surgery.
Keaveny examined Mr. Conley on June 5, 2015, after Mr. Conley
reported worsening symptoms over the last one and a half
weeks. Physical examination revealed C5-T2 edema and
tenderness. The assessment was left rotator cuff sprain. Mr.
Conley was given an injection in the left deltoid muscle. On
July 26, 2015, Dr. Keaveny completed a diagnosis update. Dr.
Keaveny requested that cervical radiculopathy be added as a
compensable diagnosis in the claim. The request was based
upon Mr. Conley's complaints of neck pain and left arm
pain and numbness. In support of her request, Dr. Keaveny
stated that because of the nature of his injury, it is very
possible that the cervical radiculopathy was a direct result
of the fall and impact.
claims administrator denied the request to add cervical
radiculopathy as a compensable diagnosis in the claim on
September 21, 2015. On December 3, 2015, Dr. Keaveny authored
a letter stating that it was her opinion that the cervical
radiculopathy was related to the compensable injury. She