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Mechel Bluestone, Inc. v. Nuckolls

Supreme Court of West Virginia

September 22, 2017

MECHEL BLUESTONE, INC., Employer Below, Petitioner
v.
CARL E. NUCKOLLS, Claimant Below, Respondent

         (BOR Appeal No. 2051387) (Claim No. 2014002989)

          MEMORANDUM DECISION

         Petitioner 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.

         The 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.

         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.

         Mr. 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.

         On 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.

         On 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.

         On 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.

         Joseph 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.

         On 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.

         Dr. 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.

         Mr. 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.

         On June 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.

         On 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 ...


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