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Ashley v. Cornerstone Interiors, Inc.

Supreme Court of West Virginia

October 10, 2017

GREG ASHLEY, Claimant Below, Petitioner
v.
CORNERSTONE INTERIORS, INC., Employer Below, Respondent

         (BOR Appeal No. 2051385) (Claim No. 2014028569)

          MEMORANDUM DECISION

         Petitioner 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.

         The 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.

         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.

         Greg 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.

         Prior 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.

         Rajesh 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.

         Mr. 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.

         An 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, lumbar MRI.

         Mr. 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.

         Jerry 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 report.

         Dr. 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.

         Bruce 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 impairment.

         On 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 ...


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