Appeal No. 2051385) (Claim No. 2014028569)
Greg Ashley, by Reginald Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Cornerstone Interiors, Inc., by Steven Wellman,
its attorney, filed a timely response.
issue on appeal is the percent of permanent partial
disability for injuries to the low back, left arm and
shoulder. On February 4, 2015, the claims administrator
granted 16% permanent partial disability for the lumbar
sprain and left upper extremity. On April 23, 2015, the
claims administrator granted 0% permanent partial disability
for the cervical spine. The Office of Judges reversed the
claims administrator's February 4, 2015, decision and
granted 3% permanent partial disability in its June 17, 2016,
Order. It also affirmed the claims administrator's April
23, 2015, decision. 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
Ashley, a carpenter, was injured on March 27, 2014, when he
fell from scaffolding. He was treated at Stonewall Jackson
Memorial Hospital for complaints of left hip, elbow and
shoulder pain. CT scans of the cervical and lumbar spines
showed no evidence of an acute injury. He was diagnosed with
acute closed fracture of the left upper radius, acute
cervical strain, and acute lumbar strain.
to his work injury, Mr. Ashley had been treated for
complaints of lumbar and cervical spine pain. On September 1,
2010, Scott Lester, M.D., noted Mr. Ashley had a history of
chronic back and neck pain. He had tendinopathy and a partial
cuff tear in the right shoulder. The diagnoses included
chronic back pain. On June 24, 2012, Mr. Ashley was seen in
the emergency room at Beckley ARH Hospital with a chief
complaint of neck and shoulder pain which he had been
experiencing for about two weeks. He was diagnosed with
chronic pain syndrome and cervical radiculitis.
Patel, M.D., started treating Mr. Ashley on December 9, 2013.
He noted Mr. Ashley had been having problems with his neck
and back for about five years, including numbness into his
hands and into his left leg. A 2010 lumbar MRI film showed an
annular tear at L5-S1 and L5-S1 disc bulging. A December 5,
2009, MRI film showed C5-C6 disc bulging. Dr. Patel diagnosed
L5-S1 annular tear, lumbar radiculitis, cervical disc bulging
at C5-C6, cervical radiculitis, and cervicalgia. On January
15, 2014, Dr. Patel noted Mr. Ashley was having pretty severe
pain in his neck and lower back into his legs. He added
lumbar degenerative disc disease and cervical degenerative
disc disease as diagnoses. On March 12, 2014, Mr. Ashley was
still having pain in his back and neck which he rated a nine
and ten, respectively, on a scale of one to ten. Dr. Patel
recommended follow-up MRIs of the lumbar and cervical spines
as these would be helpful in determining whether Mr. Ashley
needed injections or surgical intervention.
Ashley was seen by Matthew Nelson, M.D., on April 4, 2014.
Mr. Ashley denied any previous shoulder, back, or elbow pain.
Dr. Nelson diagnosed sprain and strain of unspecified site of
the shoulder and upper arm, closed fracture of proximal end
of left radius, and lumbar sprain/strain. Also on April 4,
2014, the claims administrator held the claim compensable for
a lumbar sprain, neck sprain, and left elbow fracture. On
April 8, 2014, the claims administrator added left shoulder
sprain as a compensable diagnosis per the request of Dr.
Nelson. On April 29, 2014, the claims administrator added
left wrist scaphoid fracture as a compensable diagnosis per
the request of Dr. Nelson.
April 30, 2014, cervical spine MRI revealed a right
paracentral disc protrusion at C5-C6 with bilateral facet
degenerative changes and mild bilateral neuroforaminal
narrowing. This was compared to a December 5, 2009, cervical
spine MRI and no change was noted. A lumbar spine MRI
revealed concentric bulging and mild left lateral protrusion
of the desiccated L5-S1 intervertebral disc along with small
marginal osteophytes and facet hypertrophy, resulting in
encroachment on the lateral recess; encroachment on L3-L4 and
L4-L5 left recesses by mild disc bulging, shallow right
paracentral disc protrusion at C5-C6. There was no
significant change when compared to a January 24, 2010,
Ashley underwent an arthroscopy of the left shoulder for a
labral and rotator cuff repair on June 9, 2014. The
pre-operative diagnosis was left shoulder rotator cuff tear.
The postoperative diagnosis was left shoulder partial rotator
cuff tear and grade three chondromalacia of the humeral head
of the glenoid.
Scott, M.D., performed an independent medical evaluation
regarding Mr. Ashley's lumbar spine and left upper
extremity on November 4, 2014. Dr. Scott diagnosed rotator
cuff tear of the left shoulder and left proximal radius
fracture, lumbar sprain, and either a distal radius fracture
or a scaphoid fracture. Mr. Ashley had evidence of
pre-existing degenerative diseases of the left shoulder. Dr.
Scott assessed 10% impairment for the left upper extremity
and 7% impairment for the lumbar spine, which he combined for
a total of 16% impairment. On February 4, 2015, the claims
administrator granted 16% permanent partial disability for
the lumbar spine and upper extremity based on Dr. Scott's
Scott performed an independent medical evaluation regarding
Mr. Ashley's cervical spine on March 10, 2015. Dr. Scott
diagnosed cervical sprain. Based on comparisons of the
December 5, 2009, and April 30, 2014, cervical spine MRIs,
Mr. Ashley had evidence of degenerative disease of the
cervical spine at least back as far as December 5, 2009. Dr.
Scott assessed 0% impairment for the cervical spine. On April
23, 2015, the claims administrator granted 0% permanent
partial disability for the cervical sprain/strain.
Guberman, M.D., performed an independent medical evaluation
on July 16, 2015. He diagnosed chronic post-traumatic strain
of the left shoulder, chronic post-traumatic strain of the
left wrist with a history of scaphoid fracture, chronic
post-traumatic strain of the cervical spine, and chronic
post-traumatic strain of the lumbar spine. He assessed 16%
impairment for the left upper extremity due to range of
motion abnormalities of the wrist, elbow, and shoulder; 8%
impairment for the cervical spine; and 8% impairment for the
lumbar spine for a combined total of 29% whole person
September 11, 2015, Robert Walker, M.D., performed an
independent medical evaluation. He assessed 8% impairment for
the cervical spine and 7% impairment for the lumbar spine,
which he combined for a total of 14% whole person impairment.
Dr. Walker also assessed 11% impairment for the left upper