Appeal No. 2051370) (Claim No. 2014019237)
Lynese Danford, by Edwin H. Pancake, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Kanawha Hospice Care, Inc., by H. Dill
Battle III, its attorney, filed a timely response.
issue on appeal is whether cubital tunnel syndrome and
brachial plexus injury should be added to the claim. The
claims administrator denied the addition of the conditions on
September 8, 2015. The Office of Judges affirmed the decision
in its May 27, 2016, Order. The Order was affirmed by the
Board of Review on November 21, 2016. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
Danford, a registered nurse, was injured in the course of her
employment on November 13, 2013, while lifting an unconscious
patient. A treatment note by Charles Shuff, M.D., the
following day indicates Ms. Danford reported a new
work-related injury to her neck. She indicated she lifted a
patient, felt a pop in her neck, and her entire right arm
went numb. Dr. Shuff's impression was
poly-dermatomal/atypical radiculopathy of the right
extremity. A cervical x-ray showed stable findings. Ms.
Danford's report of injury indicates she injured her neck
and right arm while transferring a patient. She felt a pop
and pull in her neck and developed immediate numbness in her
right arm. The diagnosis was listed as a cervical strain that
did not aggravate a prior injury or disease. The claims
administrator held the claim compensable for neck
sprain/strain on December 31, 2013.
Danford had a pre-existing history of cervical and right
upper extremity problems. A March 13, 2013, treatment note by
Dr. Shuff indicates she was seen for new onset of pain in the
right side of the neck, right arm, right forearm, and fingers
following a car crash four weeks prior. The impression was
degenerative disc disease of the cervical spine with C7
radiculopathy. A pain assessment completed by Nurse Mary Beth
Merritt on April 18, 2013, indicates Ms. Danford was
evaluated for complaints of neck pain and right arm numbness
and tingling. A May 16, 2013, medical report from St.
Mary's Medical Center indicates she received a cervical
epidural steroid injection for neck pain with radiculopathy.
On August 17, 2013, Ms. Danford underwent a cervical
discectomy and fusion for neck pain, numbness, tingling, and
paresthesia of the right arm performed by Dr. Shuff. The
post-operative diagnosis was right-sided C6 and C7
radiculopathy secondary to cervical canal stenosis and
spondylosis. A November 6, 2013, treatment note by Dr. Shuff,
one week prior to the compensable injury, indicates Ms.
Danford was seen for follow up with complaints of new pain on
the right side.
EMG/NCS of the right upper extremity performed on January 15,
2014, was essentially within normal limits. There was no
evidence of carpal tunnel syndrome, ulnar neuropathy, or
radial sensory neuropathy. There was no evidence of right
cervical radiculopathy or myopathy. A January 22, 2014,
treatment note by Dr. Shuff indicates Ms. Danford was
currently dealing with two problems. First, she had cervical
spondylosis with radiculopathy status post-surgery. Second,
she developed right arm and shoulder pain after pulling on a
patient at work. She continued to have numbness, tingling,
and loss of strength in the right arm. Dr. Shuff's
impression was C8 neuritis versus peripheral nerve based
ulnar lesion/stretch. He recommended a C8 steroid injection
for diagnosis and therapy. On March 26, 2014, Ms.
Danford's neck was doing well but she continued to have
numbness, tingling, and paresthesia, particularly in the
right pinky finger. She had difficulty with fine motor skills
and repetitive activity.
Mukkamala, M.D., performed an independent medical evaluation
on May 7, 2014, in which he noted diminished sensation over
the right upper extremity in a global and non-anatomic
pattern. Dr. Mukkamala diagnosed the work injury as a
cervical sprain. He found Ms. Danford had reached maximum
medical improvement and assessed 6% whole person impairment.
May 14, 2014, treatment note, Alan Koester, M.D., found that
Ms. Danford sustained a work-related traction injury to her
right arm. He noted that Dr. Shuff did not believe her
current problems were related to her pre-existing conditions.
Ms. Danford reported persistent right arm and elbow pain with
a tingling sensation into the fingers. There was also
tenderness around the brachial plexus. Dr. Koester's
impression was a likely double crush phenomenon with right
cubital tunnel syndrome and brachial plexopathy. He did not
believe the symptoms were related to the cervical spine.
Bachwitt, M.D., performed an independent medical evaluation
on June 10, 2014, in which he opined that the medical
documentation supports a causal relationship between the
compensable injury and Ms. Danford's cervical spine;
however, he found no such connection between the compensable
injury and the right arm/elbow complaints. He specifically
noted that seven days before the injury occurred, Dr. Shuff
diagnosed Ms. Danford with a new onset of C8 radiculopathy.
Dr. Bachwitt opined that the mechanism of injury, pulling on
a patient, would not cause an injury to the ulnar nerve. In
that regard, he noted that ulnar nerve injuries are usually
the result of a contusion or striking type injury to the
elbow. Dr. Bachwitt diagnosed the compensable injury as a
June 23, 2014, physician review, Randall Short, M.D., was
asked to comment on whether cubital tunnel syndrome and
brachial plexopathy should be compensable diagnoses in the
claim. Dr. Short found that according to Dr. Shuff's
November 6, 2013, treatment note, Ms. Danford's right
upper extremity symptoms predated the compensable injury. Dr.
Short additionally noted that Dr. Bachwitt determined that
her right upper extremity symptoms are unrelated to the
compensable injury. Dr. Short concluded that cubital tunnel
syndrome and brachial plexopathy should not be added as
compensable conditions in the claim.
medical report by Dr. Shuff dated June 25, 2014, indicates
Ms. Danford continued to have a brachial-plexus pattern of
pain in the right arm. His assessment was resolved cervical
radiculopathy and brachial plexus stretch injury with lower
trunk abnormality. He additionally opined that Ms.
Danford's right arm symptoms are the result of her
claims administrator denied the addition of cubital tunnel
syndrome and injury of brachial plexus to the claim on
September 8, 2015. The Office of Judges affirmed the decision
in its May 27, 2016, Order. It found that Drs. Shuff and
Koester both opined that Ms. Danford's cubital tunnel
syndrome and brachial plexus nerve injury were a result of
her compensable injury. Their findings were determined by the
Office of Judges to be inconsistent with the medical evidence
of record. Dr. Shuff's November 6, 2013, treatment note
clearly states that Ms. Danford's right upper extremity
symptoms predated the compensable injury of November 13,
2013. He noted on November 6, 2013, that she was being
evaluated for complaints of new pain following a C8
distribution on the right side. Physical examination revealed
light touch discrepancy behind the right elbow into the
forearm. Though Dr. Shuff initially diagnosed these symptoms
as a new onset of C8 radiculopathy, they are the same
symptoms which later led both Dr. Shuff and Dr. Koester to
diagnose cubital tunnel syndrome and brachial plexus injury.
The Office of Judges further found that while there is
evidence to suggest that Ms. Danford's right upper
extremity conditions were aggravated by the compensable
injury, a non-compensable pre-existing injury cannot be added
as a compensable component of a claim merely because it may
have been aggravated by a compensable injury. Gill v.
City of Charleston, 236 W.Va. 737, 783 S.E.2d 857
(2016). The Office of Judges found that Drs. Bachwitt and
Short concluded that Ms. Danford's right arm symptoms
predated the compensable injury. Additionally, Drs. Bachwitt,
Short, and Mukkamala all opined that the compensable injury
resulted in nothing more than a cervical strain. Their
opinions were determined to be consistent with the medical
evidence of record. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed its Order on November 21, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Ms.
Danford's right upper extremity symptoms clearly predated
the compensable injury as is evidenced by Dr. Shuff's
treatment notes. Though the conditions may have been
aggravated by the compensable injury, the addition ...