Appeal No. 2051387) (Claim No. 2014002989)
Mechel Bluestone, Inc., by Timothy E. Huffman, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Carl E. Nuckolls, by Reginald
D. Henry, his attorney, filed a timely response.
issue on appeal is whether cervical intervertebral disc
syndrome is a compensable condition of the claim and whether
a cervical MRI is medically related and reasonably required
for the compensable injury. The claims administrator denied
the request for a cervical MRI on April 2, 2015. The claims
administrator denied the request to add cervical
intervertebral disc syndrome as a compensable diagnosis in
the claim on August 5, 2015. The Office of Judges affirmed
the claims administrator's decisions on June 21, 2016.
The Board of Review reversed the Order of the Office of
Judges on December 8, 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
Nuckolls, a coal miner for Mechel Bluestone, Inc., injured
his back in a rock fall that occurred at work on July 24,
2013. On July 26, 2013, Mr. Nuckolls sought treatment for
complains pain in his lumbar spine and shoulders at Princeton
Community Hospital and was diagnosed with a back sprain. A
physical examination was described as normal, although Ms.
Nuckolls exhibited bruising and muscle spasm. He underwent an
x-ray examination of his thoracic spine, which was
interpreted as revealing a normal vertebral alignment without
fracture, abnormal subluxation, or degenerative changes. A
similar examination of his lumbar spine yielded the same
result. A report of injury was filed alleging a back strain.
August 7, 2013, the claims administrator held the compensable
under the diagnoses of thoracic sprain/strain and sacroiliac
region, sprain/strain. A second report of injury filed on
August 12, 2013, alleges that he sustained injury to both his
upper and lower back. Mr. Nuckolls continued to suffer pain
and sought treatment from Rocky Sexton, M.D., who diagnosed
Mr. Nuckolls as suffering from a sprain/strain injury to the
upper and lower back. On September 9, 2013, Mr. Nuckolls
underwent a thoracic spine MRI at Raleigh General Hospital,
which was interpreted as revealing a shallow disc protrusion
at T6-7 and right paracentral disc protrusion at T7-8. The
thoracic MRI was negative for fracture or subluxation. On
September 18, 2013, Mr. Nuckolls underwent an MRI of the
cervical spine, which was interpreted as revealing a large
left paracentral and foraminal disc protrusion at C6-7 and
facet arthropathy at C4-5 on the right and early foraminal
narrowing. The following day, Mr. Nuckolls underwent an MRI
of the thoracic spine, which was interpreted as revealing a
shallow disc protrusion at T6-7, right paracentral disc
protrusion at T7-8, and facet arthropthy at T9-10 and T10-11.
September 23, 2013, Dr. Sexton completed a diagnosis update
requesting to add thoracic sprain, thoracic intervertebral
disc syndrome, and cervical intervertebral disc syndrome as
compensable diagnoses under this claim. He referred to the
cervical spine MRI report and Mr. Nuckolls's numbness in
his left fingers, which correlated with a large left C6-7
herniation. Dr. Sexton requested a pre-authorization for Mr.
Nuckolls to receive a consultation with Rajesh Patel, M.D.,
an orthopedic surgeon. Attached to the request were an office
visit note and the diagnosis update. The claims administrator
referred the issue regarding the diagnosis update to James
Dauphin, M.D., who issued a report on September 27, 2013,
that there was no evidence that Mr. Nuckolls had sustained a
cervical spine injury in this claim noting that his first
three weeks of treatment made no mention of any cervical
spine injury or disc syndrome. He recommended against the
inclusion of the diagnosis.
September 30, 2013, Prasadarao Mukkamala, M.D., was asked to
opine about the requested diagnoses. Dr. Mukkamala noted that
the x-ray examination of Mr. Nuckolls's lumbar and dorsal
spine failed to reveal fractures or dislocations and that Mr.
Nuckolls had been diagnosed with low back strain and thoracic
strain. He acknowledged that the MRI of Mr. Nuckolls's
thoracic spine revealed shallow disc protrusions at multiple
levels. He concluded that Mr. Nuckolls had not sustained an
injury to his cervical spine on July 24, 2013. He further
concluded that the disc protrusions at T6-7 and T7-8 were
pre-existing and not causally related to Mr. Nuckolls's
compensable injury. He recommended against the inclusion of
the diagnoses and the referral to Dr. Patel.
E. Grady, M.D., performed an independent medical evaluation
of Mr. Nuckolls on November 18, 2013. Dr. Grady indicated
that he had performed a physical examination of Mr. Nuckolls
and reviewed his clinical history. He performed a range of
motion study on Mr. Nuckolls's thoracic spine and
diagnosed Mr. Nuckolls as suffering from thoracic sprain
superimposed on multilevel degenerative changes and
lumbosacral myofascial sprain. He concluded that Mr. Nuckolls
had reached his maximum degree of medical improvement and
suffered from no ratable whole person impairment.
January 7, 2014, the StreetSelect Grievance Board issued a
determination recommending a referral of Mr. Nuckolls to
Rajesh Patel, M.D., to evaluate the cervical spine and to
determine any relationship between Mr. Nuckolls's
complaints and the compensable injury. The StreetSelect
Grievance Board recommended against the inclusion of the
diagnosis of thoracic intervertebral disc syndrome. The
claims administrator subsequently approved the request for
consultation with Dr. Patel on January 17, 2014. On February
4, 2014, Dr. Sexton authored correspondence disputing that
thoracic intervertebral disc syndrome should not be included
as compensable under this claim. He referred to the findings
contained in the thoracic spine MRI dated September 9, 2013,
and indicated that he had made his request for a diagnosis
update based upon the same.
Patel performed a physical examination of Mr. Nuckolls on
February 5, 2014, and diagnosed him as suffering from
cervical sprain, thoracic sprain, lumbar sprain, cervical
radiculitis, cervical disc herniation at left C6-7, thoracic
disc bulging, cervical disc bulging, and cervical
radiculopathy at left C6-7. On March 18, 2014, Mr. Nuckolls
was deposed. He described the mechanism of injury and
discussed his course of treatment. He indicated that his
lower back and neck continued to hurt and he experienced
numbness in his left hand.
Nuckolls underwent a nerve conduction study performed by
Barry Vaught, M.D., on March 20, 2014. Dr. Vaught interpreted
the study as being abnormal, indicating that there was
electrophysiologic evidence for an active C6-7 radiculopathy
on the left. On April 9, 2014, Dr. Patel saw Mr. Nuckolls
regarding his lower back. Dr. Patel examined Mr. Nuckolls and
diagnosed cervical radiculopathy, left C6-7; cervical disc
herniation, left C6-7; cervicalgia; and cervical sprain. Dr.
Patel noted that Mr. Nuckolls had nerve root impingement and
disc herniation to account for his arm pain. He requested a
repeat cervical spine MRI to see if the disc herniation was
still there. If the herniation was still present, Dr. Patel
recommended proceeding with a discectomy at C6-7 to free up
the nerve and hopefully help Mr. Nuckolls with his arm pain.
In an April 19, 2014, letter, Dr. Sexton reiterated his
opinion that based upon diagnostic testing, Mr. Nuckolls had
sustained thoracic and cervical intervertebral disc syndrome
attributable to the compensable injury.
25, 2014, Mr. Nuckolls was examined by Dr. Patel regarding
his lower back and legs. Mr. Nuckolls reported that he was
having severe pain in his neck, arm, and lower back into his
legs. He reported that sitting and bending aggravated his
pain and lying down gave him relief. He reported that ice
made his pain better, but physical therapy made it worse. Dr.
Patel requested an MRI and authorization for injections for
Mr. Nuckolls's lower back. Dr. Patel recommended a lumbar
brace and prescribed Flexeril for Mr. Nuckolls. Mr. Nuckolls
was seen by Dr. Patel in February of the following year again
regarding his neck and arms. He had reported severe pain in
his neck and left arm together with his lower back and leg.
Dr. Patel's assessment was foraminal protrusion, right
L4-5; annular tear, L4-5; cervical sprain; lumbar sprain;
cervical disc herniation, C6-7; and left C6-7 radiculopathy.
Dr. Patel requested a cervical MRI. He stated that surgery
was indicated at this point as Mr. Nuckolls had not received
much relief with therapy.
April 2, 2014, the Office of Judges added thoracic
intervertebral disc syndrome as a compensable diagnosis. On
the same day, the claims administrator denied the request for
a cervical MRI. Mr. Nuckolls was subsequently seen by Dr.
Patel regarding his neck and back. Mr. Nuckolls reported that
he was getting worse. The pain was moderate to severe.
Everything Mr. Nuckolls did aggravated his pain and nothing
provided him relief. Dr. Patel stated that at Mr.
Nuckolls's age, he would not expect disc degeneration or