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Frye v. Alliance Coal, LLC

Supreme Court of West Virginia

August 24, 2017

NATHAN FRYE, Claimant Below, Petitioner
v.
ALLIANCE COAL, LLC, Employer Below, Respondent

         (BOR Appeal Nos. 2051280 & 2051284) (Claim No. 2015002142)

          MEMORANDUM DECISION

         Petitioner Nathan Frye, by Jonathan C. Bowman, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Alliance Coal, LLC, by Lucinda Fluharty, its attorney, filed a timely response.

         There are two issues on appeal. First, whether intervertebral disc disorder with myelopathy, cervical region should be added as a compensable component of the claim. Second, whether cervical epidural steroid injections should be approved for treatment of the compensable conditions. This appeal arises from the December 30, 2014, and July 30, 2015, claims administrator's decisions denying authorization for cervical epidural steroid injection with fluoroscopy and a follow-up with WVU, and denying the request to add intervertebral disc disorder with myelopathy, cervical region as a compensable component of the claim, respectively. In two separate Orders dated April 11, 2016, and April 22, 2016, the Office of Judges affirmed the claims administrator's decisions. The Board of Review affirmed the Orders of the Office of Judges on September 28, 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.

         Nathan Frye, a roof bolter, was injured in the course of his employment on July 10, 2014, when debris fell from the roof of the mine and struck him in the back and right shoulder. Mr. Frye sought treatment and was assessed with neck pain, shoulder pain, and sprain/strain of the shoulder. X-rays of the cervical spine revealed C5-6 degenerative disc space narrowing. The claim was initially held compensable for injury of the face and neck and sprain of unspecified site of the shoulder and upper arm. However, sprain/strain of the neck was later added as a compensable component of the claim. Mr. Frye continued to have pain and sought treatment from several physicians over the course of the next few months.

         Mr. Frye has a documented history of degenerative disc changes in his cervical spine. Beginning in January of 2004, Mr. Frye sought treatment from Andrew Worst, D.C., for complaints of constant dull pain and stiffness in the neck that started in November of 2003. X-rays revealed that the cervical spine curve was severely decreased. Disc spaces at C5-6 were decreased and sinuous rotation was noted to the right at T1. Facet sclerosis and Lushka joint sclerosis were present at the lower cervical spine. There was mild degenerative disc disease and degenerative joint disease present in the cervical spine.

         After the July 10, 2014, work-related injury, Mr. Frye began seeing Scott Carlos, M.D. Dr. Carlos's initial assessments were neck and shoulder pain. These assessments remained much the same over the course of treatment. Dr. Carlos ordered an MRI of the cervical spine and the impressions were disc bulging from C3-4 through C7-T1, most severe at the C5-6 level, and neural encroachment as detailed. Foraminal stenosis was also noted at C4-T1 both left and right. Eventually, Dr. Carlos referred Mr. Frye to a neurosurgeon who decided injections were the best course of action.

         On November 18, 2014, Mr. Frye underwent an independent medical evaluation performed by Sushil Sethi, M.D. Dr. Sethi opined that the injury resulted in a sprain of the right shoulder. He noted that the prior MRI revealed multilevel aging process degenerative disease which has no relationship to the work-related injury. Dr. Sethi found Mr. Frye had reached maximum medical improvement and that no further changes can reasonably be expected in spite of ongoing treatments, therapies, or interventions. On December 30, 2014, the claims administrator denied Mr. Frye's request for cervical epidural steroid injection with fluoroscopy and a follow-up with WVU based on Dr. Sethi's report. Dr. Sethi reiterated his findings in an addendum report authored on February 19, 2015. Dr. Sethi stated that the cervical sprain/strain is a soft tissue injury which is self-limiting and had resolved. He reiterated that Mr. Frye had reached maximum medical improvement for the cervical sprain/strain and that no further intervention was appropriate. Any complaints of cervical spine pain after the independent medical evaluation were from pre-existing non-compensable degenerative disc disease.

         Mr. Frye testified in a deposition on March 27, 2015, that he was injured in the course of his employment when debris fell from the roof of the mine and hit him in the head and right shoulder. His treatment included anti-inflammatory medication, injections, physical therapy, and MRI of the cervical spine, and MRI of the shoulder, and a neurosurgical consultation. In spite of the conservative treatment, his symptoms persisted. Mr. Frye stated that he saw a chiropractor prior to his injury and had his whole spine adjusted. Chiropractic visits were twice a month until before the compensable injury.

         Mr. Frye's symptoms persisted and he sought treatment from Michael Steinmetz, M.D. Dr. Steinmetz examined Mr. Frye and found him to have C5-6 and C6-7 right sided stenosis. Dr. Steinmetz recommended that Mr. Frye undergo C5-6 and C6-7 foraminotomies. On May 14, 2015, Mr. Frye underwent hemilaminotomy and foraminotomy at C5-6 on the right side. Dr. Steinmetz stated that the nerve root was verified to be decompressed with an angled nerve hook. The same procedure was performed at C6-7.

         On July 2, 2015, Mr. Frye underwent an independent medical evaluation performed by Bruce Guberman, M.D. Dr. Guberman's impressions were chronic post-traumatic strain of the cervical spine; right C5-C6 and C6-C7 disc bulging with radiculopathy; status post C5-C6 and C6-C7 hemilaminotomy and foraminotomy; and chronic post-traumatic strain of the right shoulder. Dr. Guberman opined that Mr. Frye had reached maximum medical improvement and that no further treatment was likely to improve his impairment in regards to the injury. However, Dr. Guberman did believe that the cervical epidural steroid injection was necessary, reasonable, and appropriate treatment for the injury.

         On July 21, 2015, a diagnosis update was submitted requesting that intervertebral disc disorder with myelopathy be added as a compensable component of the claim. Regarding clinical findings, it was stated that there was no prior evidence of intervertebral disc disorder with myelopathy during physical examinations or in medical history, and the MRI dated July 30, 2014, supported etiology related to work injury. On July 30, 2015, the claims administrator denied the request to add the condition to the claim.

         On January 11, 2016, Mr. Frye was evaluated by Victoria Langa, M.D. Dr. Langa diagnosed status post right C5-C6 and C6-C7 foraminotimies; post-operative mild partial right spinal accessory neuropathy; status post right shoulder arthroscopy with subacromial decompression, posterior/superior labral repair and paralabral cyst decompression; mildly symptomatic degenerative acromioclavicular joint. She opined that the July 10, 2014, injury resulted in a flare-up, exacerbation, or aggravation of Mr. Frye's underlying cervical degenerative disc disease, which ultimately resulted in the surgical decompression. In Dr. Langa's opinion, the cervical epidural steroid injection was appropriate treatment. Dr. Langa did not agree with the diagnosis of intervertebral disc disorder with myelopathy because there was no evidence that Mr. Frye exhibited cervical myelopathy. Dr. Langa disagreed with Dr. Sethi's findings that Mr. Frye had reached maximum medical improvement at the time of his examination. She stated that at the time, Mr. Frye had not yet undergone an MRI and was still symptomatic. Dr. Langa opined that Mr. Frye had not yet reached maximum medical improvement with regard to either his neck or his shoulder and therefore declined to provide an impairment rating.

         On April 11, 2016, the Office of Judges affirmed the December 30, 2014, claims administrator's decision denying the request for authorization for cervical epidural steroid injection with fluoroscopy and a follow-up with WVU. The Office of Judges noted that several physicians have attributed Mr. Frye's symptoms to degenerative conditions. The claim has been held compensable for the condition of cervical sprain/strain. However, the evidence does not show that Mr. Frye's symptoms are related to the compensable injury. The medical evidence of record shows that the symptoms are related to degenerative changes such as the multiple bulging discs. The Office of Judges also noted that Dr. Sethi opined that the evidence shows multilevel degenerative disc disease that is clearly due to aging process wear and tear which was neither caused by nor aggravated by the injury. Ultimately, the Office of Judges found that the opinion of Dr. Langa was most persuasive and that, at most, the work-related related incident resulted in the aggravation of the underlying cervical degenerative disease. West Virginia Code of State Rules §85-20-21 allows for treatment only if the pre-existing condition aggravates the compensable condition. The Office of Judges ...


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