Appeal No. 2051724) (Claim No. 2015033418)
Ronnie Lucas, by John H. Shumate Jr., his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Patriot Coal Corporation, by Henry C. Bowen,
its attorney, filed a timely response.
issue on appeal is whether the claim was properly closed for
temporary total disability benefits. The claims administrator
closed the claim for temporary total disability benefits on
April 12, 2016. The Office of Judges affirmed the claims
administrator's decision on December 6, 2016. The Board
of Review affirmed the Order of the Office of Judges on May
26, 2017. The Court has carefully reviewed the records,
written arguments, and appendices contained in the briefs,
and the case is mature for consideration.
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
Lucas, a section foreman for Patriot Coal Corporation,
injured his head, neck, shoulder, and back in a rock fall at
work on June 14, 2015. He was seen at Med-Express the same
day and diagnosed with an occupational injury described as a
concussion, contusion of head, and a cervical and lumbar
sprain/strain. On June 19, 2015, the claims administrator
held the claim compensable for a concussion, shoulder strain,
cervical strain, thoracic strain, and lumbar strain.
performed on July 7, 2015, was interpreted as showing right
posterolateral bulging of the C3-C4 intervertebral disc along
with small marginal osteophytes resulting in mild
encroachment in the lateral recess. There were also posterior
left lateral findings at the C5-C6 intervertebral disc with
marginal osteophytes resulting in effacement of the cervical
sac and mild encroachment on the left C5-C6 lateral recess.
The MRI of the thoracic spine was interpreted as showing no
evidence of thoracic intervertebral disc herniation, spinal
stenosis, or spinal cord compression.
August 18, 2015, Syed A. Zahir, M.D., examined Mr. Lucas and
concluded he suffered from a cervical and lumbosacral sprain
with radiculitis of the upper and lower extremities and
degenerative disc disease of the cervical spine. He
recommended that Mr. Lucas do extensive physical therapy and
use a TENS unit for pain control. He found Mr. Lucas should
continue anti-inflammatory medication and be referred to a
pain clinic. Brian Yee, M.D., administered cervical spine
injections on September 8, 2015. On September 21, 2015, Barry
Vaught, M.D., performed a nerve conduction study. The testing
was interpreted as showing no electrophysiological evidence
for cervical radiculopathy, median mononeuropathy, or ulnar
neuropathy on either side.
October 27, 2015, Bruce Guberman, M.D., completed an
independent medical evaluation. He found that Mr. Lucas was
not at maximum medical improvement. On February 23, 2016, Dr.
Guberman performed another independent medical evaluation. He
believed that Mr. Lucas should follow-up with at least one
treating physician such as Dr. Yee or Dr. Zahir for
management of his medication. He opined that Mr. Lucas would
require ongoing pain management with medication for at least
three to four months and further noted that he had not
benefitted from prior injections. Therefore, injections were
not likely to provide more than temporary improvement. Dr.
Guberman also opined that Mr. Lucas had reached maximum
medical improvement in regard to the subject injury and no
further specific treatment and/or diagnostic testing were
likely to improve his condition. The claims administrator
granted Mr. Lucas a 10% permanent partial disability award on
March 14, 2016.
March 25, 2016, Dr. Zahir reported that Mr. Lucas had
decreased range of motion in his cervical spine and decreased
strength in the upper extremities. He stated that they were
waiting for authorization of the radiofrequency ablation and
that Mr. Lucas may have surgery. Dr. Zahir also reported that
Mr. Lucas had radiculitis in the medial distribution area and
that Mr. Lucas needed an anterior fusion and discectomy. On
April 12, 2016, the claims administrator closed the claim for
temporary total disability benefits.
6, 2016, Dr. Guberman completed an addendum to his
independent medical evaluation that agreed with the surgery
recommended by Dr. Marsh. However, on June 10, 2016, an MRI
interpreted by Bharat Patel, M.D., showed a small central
disc protrusion at C5-C6 with compression of the anterior
dural sac. There was no central canal stenosis, neural
foramina stenosis, or cord compression. This caused Dr. Marsh
to reevaluate since the new MRI of the cervical spine no
longer showed a herniated disc. Dr. Marsh changed his mind
about the medical necessity of cervical surgery but
recommended further treatment by pain management, including
trigger point injections, physical therapy, and work
hardening on June 22, 2016.
Office of Judges determined that Mr. Lucas was not entitled
to additional temporary total disability benefits because he
was at his maximum medical improvement. The Office of Judges
noted that Dr. Guberman found Mr. Lucas to be at maximum
medical improvement. Thereafter, Dr. Marsh suggested that Mr.
Lucas would benefit from surgery. The Office of Judges found
that Dr. Guberman changed his mind about Mr. Lucas being at
maximum medical improvement based upon Dr. Marsh's
opinion. However the Office of Judges also found that Dr.
Marsh changed his opinion thereafter based upon a more recent
MRI, which showed no herniation. As a result, the Office of
Judges concluded that Mr. Lucas was at maximum medical
improvement. The Office of Judges further supported its
finding that Mr. Lucas was at maximum medical improvement
because he had received a 10% permanent partial disability
award in the claim. The Board of Review adopted the findings
of the Office of Judges and affirmed its Order.
review, we agree with the reasoning of the Office of Judges
as affirmed by the Board of Review. Dr. Guberman found that
Mr. Lucas was at maximum medical improvement. While Dr.
Guberman later changed his opinion, it was in light of Dr.
Marsh's recommendation that Mr. Lucas have surgery to
correct his herniated disc. However, Dr. Marsh subsequently
changed his opinion after seeing the new MRI, which showed no
herniation. In addition, Mr. Lucas has been determined to be
at maximum medical improvement by an independent medical
evaluation and has received a permanent partial disability
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 ...