Appeal No. 2051793, Claim No. 2016025072
Kelley White, by Patrick K. Maroney, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Dent Construction, Inc., by Jeffrey M.
Carder, its attorney, filed a timely response.
issue on appeal is whether Mr. White is entitled to
additional temporary total disability benefits and a
consultation with a neurosurgeon. The claims administrator
denied a referral to a neurosurgeon on February 22, 2016. On
May 13, 2016, it closed the claim for temporary total
disability benefits as of April 13, 2016. Finally, on June 8,
2016, the claims administrator denied reopening the claim for
temporary total disability benefits from April 13, 2016,
through May 30, 2016. The Office of Judges affirmed the
decisions in its January 20, 2017, Order. The Order was
affirmed by the Board of Review on May 3, 2017. 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
White, a supervisor and carpenter, was injured in the course
of his employment on December 21, 2015, while climbing a
ladder onto a roof. The claim was held compensable for lumbar
ligaments sprain and sprain of other parts of the lumbar
spine and pelvis. A January 4, 2016, treatment note by Mark
Calfee, D.C., indicates Mr. White was seen for work-related
lumbar and pelvic sprains. A recent MRI showed multiple disc
bulges and a protrusion at L5-S1. Dr. Calfee recommended
referral to Neurological Associates.
lumbar CT scan taken February 4, 2016, showed mild
degenerative changes, osteophyte formation, and mild disc
bulges throughout the lumbar spine and sacroiliac joints. The
impression was degenerative changes with a potential disc
abnormality. A lumbar MRI performed on February 12, 2016,
showed degenerative changes and a broad based disc protrusion
at L5-S1. There was borderline canal stenosis through most of
the lumbar spine.
Dauphin, M.D., performed an independent medical evaluation on
March 21, 2016, in which he noted that Mr. White complained
of persistent lower back pain that radiated into his groin. A
recent MRI showed disc bulging and facet hypertrophy
consistent with degenerative changes. It was noted that Mr.
White previously injured his back in October of 2014. Dr.
Dauphin diagnosed lumbar sprain and lumbar radiculopathy. He
opined that the lumbar radiculopathy was causally related to
the compensable injury. He found the lumbar sprain had
resolved. He further found that Mr. White's lumbar
degenerative changes were not related to the compensable
injury. He had not yet reached maximum medical improvement
and Dr. Dauphin recommended a neurosurgical consultation. He
stated Mr. White could return to work with temporary
restrictions from March 28, 2016, through May 28, 2016.
March 22, 2016, treatment note, Dr. Calfee diagnosed lumbar
and pelvic sprain/strain. He indicated Mr. White's
recovery was complicated by a discogenic component and
degenerative issues. He found that Mr. White was temporarily
and totally disabled due to the compensable diagnoses and
that he could attempt to return to work on April 30, 2016. In
an April 28, 2016, letter to the claims administrator, Mr.
White's counsel noted that Dr. Dauphin had recently found
that he had not reached maximum medical improvement. He had
not received temporary total disability benefits since
February 7, 2016, and had not yet been released to return to
work by Dr. Calfee. Counsel requested temporary total
disability benefits from February 7, 2016, to the present as
well as a neurosurgical consultation.
White testified in a deposition on June 22, 2016, that he
developed back pain on December 21, 2015, while climbing a
ladder at work and that his back felt fine prior to that day.
He stated that he had not received temporary total disability
benefits since March 25, 2016, even though Dr. Calfee had not
released him to return to work. Mr. White denied having
sustained a low back injury due to a motor vehicle accident
as noted in Dr. Dauphin's report. He stated that Dent
Construction, Inc., does not have light duty work available.
Mr. White stated that he had never been told prior to
December 21, 2015, that he had degenerative issues in his
back. He did state that he injured his back in November of
2014 while laying tile. He missed work for the injury but did
not seek medical treatment.
Dent stated in a July 19, 2016, affidavit that she is the
secretary treasurer for Dent Construction, Inc. Mr. White had
worked for the company for five years and had taken off of
work numerous times for back pain. He was off for most of
December 2014 for back pain. At that time, he informed Ms.
Dent that he had degenerative issues with his back and that
nothing could be done about it.
August 5, 2016, age of injury report, Jonathan Luchs, M.D.,
reviewed Mr. White's February 12, 2016, MRI. It showed
small degenerative disc bulges throughout the lumbar spine
and a broad based disc protrusion at L5-S1. Dr. Luchs
determined the disc protrusion contained a degenerative
annular signal, without focal tear to suggest an acute
herniation. Dr. Luchs therefore concluded that the L5-S1 disc
protrusion was degenerative in nature.
Soulsby, M.D., performed an independent medical evaluation on
September 6, 2016, in which he assessed lumbar sprain/strain,
degenerative disc disease of the lumbar spine, and tobacco
use. He opined that the lumbar sprain/strain was the only
diagnosis causally related to the compensable injury. He
found that the lumbar degenerative changes and disc
protrusion at L5-S1 predated the compensable injury. At the
time of examination, the only objective clinical findings
were related to the degenerative disease. Mr. White did not
identify any complaints specifically related to lumbar
radiculopathy and the physical examination found no evidence
of radiculopathy. To the extent that he had complaints of
radiculopathy, Dr. Soulsby found that such complaints were
the result of preexisting degenerative changes. He also
opined that Mr. White's current complaints were not
causally related to the compensable injury. Mr. White was
determined to have reached maximum medical improvement. Dr.
Soulsby concluded that a neurosurgical consultation was not
medically necessary or reasonable treatment for the
compensable injury. He further found no evidence of a
progression or aggravation of the compensable injury. Using
the American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed. 1993), he
assessed 0% impairment.
claims administrator denied a referral to a neurosurgeon on
February 22, 2016. On May 13, 2016, it closed the claim for
temporary total disability benefits as of April 13, 2016.
Finally, on June 8, 2016, the claims administrator denied a
request to reopen the claim for temporary total disability
benefits from April 13, 2016, through May 30, 2016. The
Office of Judges affirmed the claims administrator's
decisions in its January 20, 2017, Order. In regard to the
treatment request, the Office of Judges found that Dr. Calfee
requested a neurosurgical evaluation based on Mr. White's
MRI findings; however, the claim is only compensable for
lumbar sprain and pelvic sprain. Disc bulging and disc
protrusion/herniation are not compensable components of the
claim. Accordingly, Dr. Calfee's request for a
neurosurgical consultation is not reasonably required
treatment. The Office of Judges noted that Dr. Dauphin also
recommended a neurosurgical consultation. However, like with
Dr. Calfee, Dr. Dauphin's request was not made for the
treatment of a compensable condition. Dr. Dauphin's
request was to evaluate lumbar radiculopathy, a
noncompensable condition. Further, Dr. Dauphin expressly
stated that the compensable condition of lumbar sprain had
resolved. Additionally, Dr. Soulsby specifically opined that
a neurosurgical consultation was not necessary treatment for
the compensable lumbar sprain/strain. Dr. Soulsby found Mr.
White to be at maximum medical improvement and opined that
his ongoing complaints are the result of noncompensable
degenerative disease. The Office of Judges found this finding
to be consistent with the evidence of record and the age of
closure of temporary total disability benefits, the Office of
Judges determined that Dr. Dauphin performed an independent
medical evaluation in March of 2016. Though he determined Mr.
White had not reached maximum medical improvement, that
determination was based upon complaints of lumbar
radiculopathy. Lumbar radiculopathy is not a compensable
condition in the claim. Further, Dr. Dauphin specifically
found that the compensable lumbar sprain had resolved. The
Office of Judges determined that Dr. Dauphin's finding