Appeal No. 2051449) (Claim No. 2015018922)
April Lesher, by Reginald D. Henry her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Beaver Family Clinic, by Katherine H. Arritt its
attorney, filed a timely response.
issues on appeal are whether herniated disc and disc bulge
should be held as compensable components of the claim, and
whether additional temporary total disability benefits should
be granted from December 9, 2014, through April 7, 2015, and
thereafter as substantiated by proper medical evidence. This
appeal originated from two separate claims
administrator's decisions dated December 9, 2014, and
February 5, 2015, which closed the claim for temporary total
disability benefits and denied the request to add herniated
disc and disc bulge as compensable components of the claim,
respectively. In its July 21, 2016, Order, the Workers'
Compensation Office of Judges affirmed the decisions. The
Board of Review's Final Order dated December 16, 2016,
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
Lesher, an office clerk, was injured in the course of her
employment on November 12, 2013, when her chair broke as she
sat down, causing her to fall to the floor and injure her low
back and right hip. Ms. Lesher was treated by Angela Presley,
FNP. Ms. Presley diagnosed sprain/strain of the right hip,
pain in the lower leg joint, and backache. X-rays of Ms.
Lesher's lumbar spine and right hip were taken on
November 12, 2013. The x-ray of the spine revealed
degenerative disc disease and joint disease, most pronounced
at L4-5 and L5-S1. There was no evidence of acute fracture or
subluxation. The x-ray of the right hip revealed no evidence
of acute injury. On December 9, 2013, the claims
administrator held the claim compensable for sprain/strain of
the right hip; unspecified backache; and pain in joint, lower
leg. The claims administrator also stated that Ms. Lesher was
not eligible for temporary total disability benefits as she
had not missed more than three days of work related to the
Lesher was treated for her compensable injuries by Syed
Zahir, M.D. On December 17, 2013, Dr. Zahir's physical
examination revealed tenderness to the entire lumbosacral
area in the paralumbar muscles. Lumbar range of motion was
significantly restricted. There was normal sensation and
motor strength in both lower extremities. Dr. Zahir's
clinical impression was lumbosacral pain, possible herniated
disc at L4-5 and L5-S1, bilateral radiculitis, hypertension,
and depression. Dr. Zahir recommended Tramadol, physical
therapy, and an MRI of the low back.
Lesher underwent an MRI of the low back on March 26, 2014.
The impression was left disc herniation with extension of
herniated disc material at L3-4, a broad-based, left-sided
disc bulge at L4-5, disc herniation at L3-4 and L4-5, and
osteoarthritic lumbar degenerative disease. After reviewing
the MRI, Dr. Zahir requested authorization for Ms. Lesher to
be seen at a pain clinic and requested epidural blocks and a
second opinion from a neurosurgeon.
April 23, 2014, Ms. Lesher underwent an independent medical
evaluation performed by Prasadarao Mukkamala, M.D. Physical
examination revealed vertebral tenderness in the midline of
the low back and tenderness over the sacroiliac joint on the
right side. Sensory examination of the lower extremities
revealed some diminution of sensation in the right lower
extremity in a non-anatomical pattern. Range of motion
measurements of the lumbar spine were limited by pain and did
not meet the American Medical Association's Guides to
the Evaluation of Permanent Impairment (4th ed. 1993)
validity criteria. Dr. Mukkamala concluded that Ms.
Lesher's compensable injury had resulted in a lumbar
sprain. He opined that the L3-4 disc herniation and lumbar
degenerative changes seen on imaging studies most likely
pre-dated the compensable injury. He further noted, however,
that the L3-4 disc herniation was apparently asymptomatic
prior to the compensable injury. Dr. Mukkamala found that Ms.
Lesher had failed conservative management and recommended a
referral to a neurosurgeon. He opined that Ms. Lesher had not
yet reached maximum medical improvement.
Lesher continued to see Dr. Zahir from May 6, 2014, through
June 26, 2014, for complaints of back pain radiating into her
right leg. His clinical impression remained herniated discs
at L3-4, L4-5, and L5-S1. On June 30, 2014, Ms. Lesher was
evaluated by neurosurgeon Robert Crow, M.D. Dr. Crow reviewed
Ms. Lesher's prior MRI and found no evidence of acute
change. Dr. Crow's impression was lumbar spondylosis and
lumbar pain. Ms. Lesher continued to treat with Dr. Zahir
through November 7, 2014. Dr. Zahir requested authorization
for a quad cane and expanded his impression to include
chronic leg pain and bilateral radiculitis.
November 21, 2014, Ms. Lesher was re-evaluated by Dr.
Mukkamala, who concluded that the compensable injury had
resulted in a lumbar and right hip sprain. He found that Ms.
Lesher had reached maximum medical improvement and was in
need of no further treatment regarding her compensable
conditions. Dr. Mukkamala opined that Ms. Lesher was capable
of returning to her pre-injury sedentary level job without
restrictions. Ms. Lesher subsequently continued to see Dr.
Zahir for complaints of pain and on January 21, 2015, Dr.
Zahir completed a Diagnosis Update requesting that herniated
disc and disc bulge be added as compensable diagnoses in the
claim. In support of the request, Dr. Zahir indicated that
imaging studies revealed a herniated and bulging lumbar disc.
Lesher underwent an independent medical evaluation performed
by Marsha Bailey, M.D., on March 29, 2015. Dr. Bailey
reviewed Ms. Lesher's significant history of pre-existing
low back pain. Regarding her past medical history, Ms. Lesher
reported that she started experiencing severe lower back pain
that radiated into her right buttock and right leg in 2005.
She was diagnosed with sciatica and underwent sacroiliac
joint injections once every two months through 2008. Ms.
Lesher was also prescribed pain medication and muscle
relaxers. Dr. Bailey also reviewed medical records from
October 4, 2012, through July 29, 2013. During that time, Ms.
Lesher was treated for chronic low back pain with
radiculopathy and hip pain which, notably, are the identical
symptoms and diagnoses that were present following her
compensable injury. Dr. Bailey noted that on July 29, 2013,
just three and a half months prior to the compensable injury,
Ms. Lesher was treated for a chief complaint of lower back
pain with radiation into both legs.
examination, Dr. Bailey diagnosed Ms. Lesher with chronic
lower back pain without true lumbar radiculopathy. Dr. Bailey
noted that the MRI taken of the lumbar spine on March 26,
2014, revealed no evidence of an acute injury-related,
right-sided herniated disc. She opined the left-sided disc
herniation at L3-4 and the left-sided disc bulge at L4-5 seen
on the MRI were degenerative in nature and not the result of
the compensable injury. Dr. Bailey concluded that the
compensable injury resulted in nothing more than a simple
sprain and contusion injury to the low back. She opined that
the compensable sprain and contusion injuries had long since
resolved and were no longer responsible for Ms. Lesher's
ongoing back and right lower extremity complaints. Dr. Bailey
found Ms. Lesher had reached maximum medical improvement and
needed no further treatment.
August 27, 2015, Ms. Lesher testified in a hearing before the
Office of Judges regarding her November 12, 2013, injury. Ms.
Lesher continued working until April of 2014, when she quit
because she was unable to tolerate more than five to ten
minutes of traction. Ms. Lesher stated that she was treated
by Dr. Zahir until March of 2015 and that she was not
scheduled for any follow-up appointments. Ms. Lesher
testified that she did not have any injuries to her low back
or right hip prior to the compensable injury. She stated that
she did receive treatment for sciatica around 2010 or 2011.
Ms. Lesher described her current symptoms as low back pain
with burning, numbness, and tingling in the right leg. She
reported swelling in her right foot. Ms. Lesher testified
that she could only sit for thirty minutes at a time and
stand for about ten minutes. She reported she could only walk
about one hundred feet. Ms. Lesher did not believe she could
return to her pre-injury job because it required her to get
up and down on a frequent basis.
21, 2016, the Office of Judges affirmed the claims
administrator's decisions denying the request to add
herniated disc and disc bulge as compensable conditions in
the claim and closing the claim for temporary total
disability benefits. The Office of Judges concluded that
based upon the evidence of record, the requested diagnoses
pre-dated and are not causally related to the compensable
injury. While there is imaging evidence of the diagnoses,
those findings were associated with disc degeneration that
was shown on the March 26, 2014, MRI report. With the
exception of Dr. Zahir, every medical evaluator of record
opined that the disc pathology seen at the L3-4 and the L4-5
levels was related to a pre-existing degenerative condition.
Dr. Crow reviewed the aforementioned MRI and found no
evidence of acute pathology in the lumbar ...