LESA G. MORRAL, Claimant Below, Petitioner
v.
ARMSTRONG HARDWOOD FLOORING COMANY, Employer Below, Respondent
BOR
Appeal No. 2051618 (Claim No. 2016018709)
MEMORANDUM DECISION
Petitioner
Lesa G. Morral, by Robert L. Stultz, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Armstrong Hardwood Flooring Company, by
Alyssa A. Sloan, its attorney, filed a timely response.
The
issue on appeal is whether Ms. Morral is entitled to a
reopening of her claim for additional temporary total
disability benefits. On July 21, 2016, the claims
administrator denied the reopening of the claim for temporary
total disability benefits. The Workers' Compensation
Office of Judges affirmed the claims administrator's
decision on October 7, 2016. This appeal arises from the
Board of Review's Final Order dated February 21, 2017, in
which the Board affirmed the February 21, 2017, 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 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.
Ms.
Morral injured her low back, right buttock, and right leg
while cleaning a piece of equipment while working for
Armstrong Hardwood Flooring Company on December 17, 2015. She
was initially treated at Elkins Express Care and later came
under the care and treatment of Russell Biundo, M.D. The
claims administrator authorized an MRI of the lumbar spine on
January 29, 2016. The MRI showed loss of intervertebral disc
space height and hydration at L5-S1; mild disc bulge and
facet arthropathy at L2-L3; mild disc bulge and facet
arthropathy at L3-L4; mild disc bulge at L4-L5; and a
generalized disc bulge with central disc protrusion at L5-S1,
including mild facet arthropathy, mild central canal
stenosis, with bilateral lateral recess stenosis, and central
disc protrusion in close proximity to the traversing
bilateral S1 nerve roots. The claims administrator held the
claim compensable on February 16, 2016, on a no lost time
basis. The claim was held compensable for a sprain of
ligaments of the lumbar spine and lumbago with sciatica,
right side. Ms. Morral protested the compensability order.
Ms.
Morral was treated by Dr. Biundo on March 31, 2016, at which
time he reviewed an MRI of her lumbosacral spine. Dr. Biundo
noted that the MRI reveals Ms. Morral has an L5-S1 herniated
disc with right L5-S1 radiculopathy. Physical therapy was
recommended, along with a modified work schedule. She was
prescribed Neurontin to control her pain.
The
record shows that Ms. Morral underwent physical therapy with
Elkins Physical Therapy from April 6, 2016, through May 20,
2016, for lumbar intervertebral disc displacement. Records
indicate she had good progress with physical therapy. Her
activity and sleep tolerance improved with treatment. On May
12, 2016, Dr. Biundo re-evaluated Ms. Morral's condition
and once again he diagnosed her with a lumbar herniated disc.
On
April 14, 2016, Ms. Morral's deposition was taken. She
testified that on December 17, 2015, she was on her knees
cleaning out the undersurface of a running board machine when
she felt a pulling sensation in her low back. She was
informed by Dr. Biundo that the herniated disc in her lumbar
spine was putting pressure on the sciatic nerve and causing
symptoms in her right lower extremity. Eventually, Dr. Biundo
recommended physical therapy and placed Ms. Morral on a light
duty work schedule. Ms. Morral testified that she was missing
two to three days a week until she completely ceased working
on April 1, 2016. She testified that she was participating in
physical therapy and was unable to sleep at night. Ms. Morral
also stated that she cannot stand or sit for more than thirty
minutes at a time. She stated she is unable to perform her
job duties at the same pace and rate as before the December
17, 2015, injury.
Ms.
Morral filed a Claims Reopening Form on July 13, 2016, and
requested temporary total disability benefits from March 31,
2016, through July 31, 2016. Dr. Biundo signed the
physician's portion of the form and listed Ms.
Morral's present diagnosis as being a lumbar herniated
disc. He indicated that there had been an aggravation or
progression of Ms. Morral's disability due to increased
pain, as well as an opinion that her current condition is a
direct result of her compensable injury. On July 21, 2016,
the claims administrator denied the request to reopen the
claim and indicated that the request was based upon treatment
for an unrelated condition. Ms. Morral protested the claims
administrator's decision.
On
October 7, 2016, the Office of Judges issued a Decision in
which it affirmed the claims administrator's Order
denying reopening of the claim. The Office of Judges found
that all of Dr. Biundo's findings and conclusions were
based upon a diagnosis of lumbar herniated disc, which has
not been recognized as a compensable diagnosis in the claim.
Dr. Biundo's medical records of March 31, 2016, indicate
the claimant was taken off work due to a diagnosis of lumbar
herniated disc with right L5-S1 radiculopathy. Ms. Morral was
treated with physical therapy from approximately April 6,
2016, through May 20, 2016, for treatment of lumbar
intervertebral disc displacement. In addition, Dr.
Biundo's medical records of May 12, 2016, and July 5,
2016, indicate Ms. Morral's continuing disability and the
need for ongoing medical treatment were due to the lumbar
herniated disc. Finally, the reopening request only mentions
Ms. Morral's lumbar herniated disc. The Office of Judges
stated that although Dr. Biundo does indicate Ms.
Morral's condition is causally related to the compensable
injury, all of his findings and conclusions are predicated
upon a diagnosis of lumbar herniated disc. Thus, the Office
of Judges concluded that the reopening application is based
upon a non-compensable condition. The Board of Review adopted
the findings and conclusions of law of the Office of Judges
and affirmed its Decision on February 21, 2017.
We
agree with the decision of the Board of Review. According to
the findings of the Office of Judges and medical evidence of
record, Dr. Biundo's treatment is clearly in regard to a
lumbar disc herniation, which is a non-compensable condition
in the claim. A request to have the lumbar herniated disc
added as a compensable condition to the claim has not been
received by the claims administrator. The evidence contained
in the record shows that the Board of Review did not err in
affirming the order denying the request to reopen the claim
for the payment of additional temporary total disability
benefits.
For the
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 evidentiary
record. Therefore, the decision of the Board of Review is
affirmed.
Affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. ...