Appeal No. 2051494 (Claim No. 2015001527)
Scottie Elswick, by Reginald Henry his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. The West Virginia Office of the Insurance
Commissioner, by Henry Bowen its attorney, filed a timely
issue presented in the instant appeal is Mr. Elswick's
request to add thoracic or lumbosacral neuritis or
radiculitis, unspecified, as a compensable component of his
claim for workers' compensation benefits. On February
4, 2016, the claims administrator denied a request to add
unspecified thoracic or lumbosacral neuritis or radiculitis,
other injury of other sites of the trunk, other and
unspecified injury to the shoulder and upper arm, disorder of
the bursae and tendons in the shoulder region (rotator cuff
syndrome), lumbosacral joint ligament sprain, and
displacement of a lumbar intervertebral disc without
myelopathy as compensable components of Mr. Elswick's
claim. The Office of Judges by Order dated
August 8, 2016, modified the claims administrator's
decision to reflect that the diagnosis of disorder of bursae
and tendons in the shoulder region (rotator cuff syndrome) is
a compensable component of Mr. Elswick's
claim.This appeal arises from the Board of
Review's Final Order dated January 23, 2017, in which the
Board affirmed the Order of the Office of Judges. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Elswick injured his cervical spine, lumbar spine, and right
shoulder when he fell on July 7, 2014, in the course of and
resulting from his employment with Eastern Associated Coal.
On the date of injury, he sought treatment in the emergency
department of Charleston Area Medical Center, where he was
diagnosed with back and right shoulder pain. X-rays of the
lumbar spine were obtained and revealed degenerative joint
disease. Mr. Elswick's claim for workers'
compensation benefits was held compensable for a cervical
sprain, a lumbar sprain, and a right shoulder sprain on July
22, 2014. The MRI report from Thomas Memorial Hospital dated
July 30, 2014, revealed multilevel degenerative disc disease
of the lumbar spine, degenerative disease of the right
shoulder, and a partial thickness tear of the supraspinatus
and infraspinatus tendons in the right shoulder.
ongoing complaints of radiating lower back pain, Mr. Elswick
underwent an EMG, which did not reveal any evidence of
neuropathy or radiculopathy. Additionally, Rida Mazagri,
M.D., performed a neurosurgical consultation on November 5,
2014, during which it was noted that Mr. Elswick began
experiencing bilateral hip and back pain following a
work-related accident in September of 2013. After reviewing
the results of the July 30, 2014, lumbar spine MRI, Dr.
Mazagri opined that Mr. Elswick's current symptoms are
most likely attributable to multilevel degenerative disc
disease. The claims administrator closed the claim on a
temporary total disability basis on July 15, 2015.
Mukkamala, M.D., performed an independent medical evaluation
on April 27, 2015. Dr. Mukkamala opined that Mr. Elswick has
reached maximum medical improvement and requires no further
treatment in relation to the compensable injury.
Specifically, Dr. Mukkamala opined that further treatment of
the lumbar spine would be aimed at the treatment of non-
compensable degenerative changes. He also noted that the
results of the EMG did not reveal any neurological deficits.
October 1, 2015, Mr. Elswick sought treatment with Richard
Bowman, M.D., who diagnosed Mr. Elswick with a bulging lumbar
intervertebral disc, lumbar radiculopathy, and chronic pain
syndrome. Dr. Bowman performed a lumbar discogram on December
4, 2015, and opined that the L2-3 and L3-4 discs are both
concordant for the lower back pain with radiation currently
experienced by Mr. Elswick. A repeat lumbar spine MRI
performed on December 29, 2015, revealed degenerative changes
with areas of canal and foraminal stenosis.
January 6, 2016, Richard Knapp Jr., M.D., Mr. Elswick's
primary care provider, authored a diagnosis update request.
Dr. Knapp listed Mr. Elswick's primary diagnosis as an
injury to unspecified sites of the trunk and listed his
secondary diagnoses as an unspecified injury to the shoulder
and upper arm, a tear of the supraspinatus tendon, a
lumbosacral strain, lumbar radiculopathy, and a bulging
lumbar disc. Additionally, Mr. Elswick sought treatment with
orthopedic surgeon Rajesh Patel, M.D., on January 13, 2016.
Dr. Patel diagnosed Mr. Elswick with discogenic pain at L2-3
and L3-4, degenerative disc disease at L2-S1, lumbago, a
lumbar sprain, lumbar facet arthropathy at L2-S1, and lumbar
February 4, 2016, the claims administrator denied Dr.
Knapp's request to add unspecified thoracic or
lumbosacral neuritis or radiculitis, other injury of other
sites of the trunk, other and unspecified injury to the
shoulder and upper arm, disorders of the bursae and tendons
in the shoulder region (rotator cuff syndrome), lumbosacral
joint ligament sprain, and displacement of a lumbar
intervertebral disc without myelopathy as compensable
components of Mr. Elswick's claim. In response to the
claims administrator's denial of his request to add the
additional diagnoses as compensable components of the claim,
Dr. Knapp authored a letter on May 3, 2016. Dr. Knapp stated
that he requested the addition of lumbosacral neuritis or
radiculitis as a compensable diagnosis because Mr. Elswick
reported experiencing symptoms of numbness, tingling, and
radiation of pain into the lower extremities that were not
present prior to the July 7, 2014, injury.
Office of Judges modified the February 4, 2016, claims
administrator's decision denying Dr. Knapp's request
to add additional diagnoses as compensable components of the
claim to reflect that disorder of bursae and tendons in the
shoulder region (rotator cuff syndrome) is a compensable
diagnosis. The Board of Review affirmed the reasoning
and conclusions of the Office of Judges in its decision dated
January 23, 2017. On appeal, Mr. Elswick asserts that the
evidence of record demonstrates that he developed lumbosacral
radiculitis as a result of the July 7, 2014, injury.
the request to add thoracic or lumbosacral neuritis or
radiculitis as a compensable diagnosis, the Office of Judges
noted that neither the September 12, 2014, EMG nor Dr.
Mukkamala's April 27, 2015, evaluation reveal any
evidence of neurological deficits. The Office of Judges
further found that the evidence of record indicates that Mr.
Elswick began experiencing symptoms of radiculitis/neuritis
after being involved in a work-related accident that occurred
in 2013 and is unrelated to the instant claim. The Office of
Judges then concluded that the evidence of record
demonstrates that Mr. Elswick's symptoms, which Dr. Knapp
relates to the July 7, 2014, injury and which he diagnosed as
lumbosacral neuritis or radiculitis, arose from pre-existing
conditions rather than the July 7, 2014, injury. We agree
with the reasoning and conclusions of the Office of Judges,
as affirmed by the Board of Review.
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 ...