Appeal No.20051380, Claim No. 2012021279
Augustine Cortez, by Robert L. Stultz, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Lowe's Home Centers, Inc., by James
Heslep, its attorney, filed a timely response.
issue on appeal is the permanent partial disability award. On
December 9, 2014, the claims administrator granted 0%
permanent partial disability. The Office of Judges affirmed
the claims administrator in its June 16, 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 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
Cortez, a flooring specialist, injured his low back on
December 31, 2011, when he was moving boxes of laminated
flooring. The claim was originally held compensable for a
lumbar sprain/strain on January 10, 2012. On May 8, 2012, Mr.
Cortez underwent an L2-L3 anterior lumbar interbody fusion on
the diagnosis of L2-L3 herniated nucleus pulposus and
spondylolisthesis. In addition to the fusion, the procedure
included anterior interbody cage and pedicles screws,
including removal of old hardware at L3 and L5 and
replacement with new hardware. On April 1, 2013, the Office
of Judges held the claim compensable for the additional
diagnoses of herniated disc/intervertebral disc disorders and
a retrolisthesis(spondylolisthesis) of L2 on
Jin, M.D., performed an independent medical evaluation on
January 14, 2014. Mr. Cortez told Dr. Jin he was injured on
December 31, 2011, when he was restacking boxes that had
fallen onto a skid. The boxes weighed about forty pounds
each. As he was picking up the boxes, he twisted and while
doing this, he felt a sudden, sharp pain in his lumbar spine
and his right leg went numb. He received emergent treatment
that day, and was referred to James Chadduck, M.D. Dr.
Chadduck performed an L2-L3 fusion surgery in May of 2012 and
then a surgery to remove the hardware from the fusion in May
of 2013. Mr. Cortez advised his leg problems were completely
resolved after the surgery, although he continued to have
constant lower back pain. Dr. Jin noted Mr. Cortez had
undergone a total of five surgeries on his lumbar spine,
including L2-L3 and L4-L5 laminectomies in 2001 and 2002; an
L3-L4 and L4-L5 fusion in 2004; the 2012 lumbar fusion; and
the 2013 hardware removal. Dr. Jin diagnosed history of
previous lumbar spine injury and multiple lumbar spine disc
surgeries, including laminectomy, discectomy and multiple
level fusion from L3 through L5; history of probable
mechanical back injury in December of 2011 with a diagnosis
of lumbar sprain/strain under the claim; and preexisting
chronic degenerative lumbar disk disease. Dr. Jin completed
the Low Back Examination Questionnaire as a part of her
evaluation of the claimant.
March 5, 2014, Dr. Jin prepared a supplemental report
regarding her January 14, 2014, evaluation of Mr. Cortez. Dr.
Jin assessed 19% whole person impairment. She then referred
to the West Virginia Code of State Rules and adjusted the
whole person impairment according to Rule 20. She placed Mr.
Cortez in lumbar Category IV of Table 85-20-C and assessed
20% whole person impairment. She noted Mr. Cortez had a
previous lumbar fusion at L3-L4 and L4-L5, and therefore the
pre-existing impairment had to be apportioned. She opined Mr.
Cortez would have had 20% whole person impairment due to the
prior fusion. Therefore, he had no additional impairment due
to the 2012 fusion. She assessed 0% impairment due to the
December 31, 2011, injury.
Martin, M.D., performed an independent medical evaluation of
Mr. Cortez on October 13, 2014. Mr. Cortez provided Dr.
Martin with the same injury and medical histories that he had
provided Dr. Jin. Dr. Martin noted Mr. Cortez had undergone a
total of five surgeries on his lumbar spine, including L2-L3
and L4-L5 laminectomies in 2001 and 2002 and then an L3-L4
and L4-L5 fusion in 2004. In Dr. Martin's opinion, Mr.
Cortez experienced a lumbar strain/sprain type injury on
December 31, 2011. Dr. Martin also diagnosed
spondylolisthesis, but opined it was not related to the work
injury. Dr. Martin assessed 19% whole person impairment. He
then referred to the West Virginia Codes of State Rules and
adjusted the whole person impairment according to Rule 20. He
placed Mr. Cortez in the lumbar Category IV of Table 85- 20-C
and assessed 20% whole person impairment based on the lumbar
fusion. Dr. Martin completed the Low Back Examination
Questionnaire as part of his evaluation.
December 3, 2014, Dr. Martin completed a supplemental report
regarding his October 13, 2014, evaluation of Mr. Cortez. Dr.
Martin apportioned the entire 20% impairment to Mr.
Cortez's prior two level fusion. He opined that Mr.
Cortez had 0% whole person impairment with respect to the
work-related injury. On December 9, 2014, the claims
administrator granted 0% permanent partial disability based
on Dr. Martin's evaluation and reports.
A. Snead, M.D., performed an independent medical evaluation
on September 9, 2015. Mr. Cortez provided Dr. Snead with the
same injury and medical history as he did to Dr. Jin and Dr.
Martin. Dr. Snead's diagnosis was status postoperative
spine fusion for L2-L3 disc herniation. Dr. Snead assessed
23% whole person impairment. He attributed the entire
impairment to the most recent injury since Mr. Cortez had
returned to work after the first fusion surgery in 2004. Dr.
Snead did not complete the Low Back Examination Questionnaire
as part of his evaluation.
Office of Judges affirmed the claims administrator's
award of 0% permanent partial disability in its June 16,
2016, Order. It noted that Dr. Jin, Dr. Martin, and Dr. Snead
assessed Mr. Cortez's permanent impairment. Dr. Jin and
Dr. Martin assessed 0% impairment for the December 31, 2011,
work injury. Dr. Snead assessed 23% WPI due to the work
injury. The Office of Judges found that Dr. Snead failed to
include the low back form with his evaluation. This is
required by West Virginia Code of State Rules §85-20.
Both Dr. Jin and Dr. Martin included the required form with
their evaluations. The Office of Judges also found that Dr.
Snead did not consider Mr. Cortez's prior injuries and
resulting surgeries in arriving at his assessment of 23%
whole person impairment. West Virginia Code of State Rules
§85-20-66.4 (2006) states "to the extent that
factors other than the compensable injury may be affecting
the injured worker's whole body medical impairment, the
opinion stated in the report must, to the extent medically
possible, determine the contribution of those other
impairments whether resulting from an occupational or a
nonoccupational injury, disease, or other cause." As Dr.
Snead failed to include the low back form evaluation, and
failed to consider the claimant's prior injuries and
surgeries, the Office of Judges found his report unreliable.
Therefore, it relied on the opinion of Dr. Martin, who
assessed 0% whole person impairment. It found his report to
be the most credible. Dr. Martin evaluated Mr. Cortez after
the additional compensable conditions were added, he included
the low back form with his evaluation, and he took into
account the factors other than the compensable injury that
affected the whole person impairment.
November 21, 2016, decision the Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges. After review, we agree with the Board of Review. The
Office of Judges properly weighed the evidence and found Dr.
Martin's opinion to be the most credible. The impairment
resulting from the first injury and surgery "shall not
be taken into consideration in fixing the amount of
compensation allowed by reason of the subsequent
injury". See West Virginia Code §23-4-9(b)
(2006) Moreover, the degree of pre-existing impairment
does not have to be "definitely ascertained or rated
prior to the injury received in the course of and resulting
from the employee's employment " and "the
degree of the pre-existing impairment may be established at
any time by competent medical or other evidence."
Id. Dr. Martin evaluated Mr. Cortez after the
additional compensable conditions were added, he included the
low back form with his evaluation report, and he properly
addressed the impairment that resulted from the first fusion
surgery. The Office of Judges reliance on his opinion was not
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the ...