Appeal No. 2051736) (Claim No. 2012032109)
Thomas Gwinn Jr., by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Winchester Mine, LLC, by Henry C. Bowen, its
attorney, filed a timely response.
issue on appeal is whether a spinal cord stimulator should be
authorized. The claims administrator granted Mr. Gwinn a 5%
permanent partial disability award on November 11,
2015. On August 17, 2016, the claims
administrator denied a request for a spinal cord stimulator.
The Office of Judges reversed the November 11, 2015, decision
and granted a 7% permanent partial disability award in its
December 16, 2016, Order. In its Order, the Office of Judges
also affirmed the August 17, 2016, claims administrator's
decision. The Order was affirmed by the Board of Review on
June 15, 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
Gwinn, an electrician, was injured in the course of his
employment on March 23, 2012, while installing a motor in a
mantrip. The employees' and physicians' report of
injury indicates he injured his back while installing a
motor. The injury was listed as a sprain/strain to the back.
thoracic x-ray taken on April 5, 2012, showed degenerative
disc disease with no acute fracture. A lumbar x-ray showed no
acute fracture. A cervical x-ray also showed no acute
fracture. A cervical MRI taken April 19, 2012, showed a large
disc herniation at C5-6 and resulting central canal stenosis
with spinal cord compression. There was also a relatively
large paracentral disc herniation at C6-7. A lumbar MRI
showed multilevel degenerative disc bulges with stenosis at
L2-3 and L3-4 as well as foraminal stenosis at L2-3, L3-4,
claim was held compensable for lumbar sprain/strain on April
27, 2012. On May 23, 2012, the claims administrator issued a
decision that listed the accepted diagnoses as lumbar
sprain/strain and cervical sprain/strain. Thoracic
sprain/strain was later added as a compensable condition.
Right paracentral disc herniation C5-6 with resulting central
spinal canal stenosis, cord compression, and right neural
foraminal stenosis; large right paracentral foraminal disc
herniation at C6-7; L2-3 broad based disc bulge, L3-4 mild
broad based disc bulge, and L4-5 board based disc bulge were
rejected as compensable conditions.
28, 2012, a thoracic MRI showed compression deformities of
the vertebrae, posterior element disruption or malalignment,
acquired disc herniations at T4-5 and T6-7 contributing to
neural impingement and central canal stenosis, and central
spinal canal stenosis on a congenital basis from T4 to T11 as
a result of congenitally short pedicles.
Bachwitt, M.D., performed an independent medical evaluation
on August 24, 2012. He diagnosed cervical sprain/strain with
herniated discs at C5-6 and C6-7, a lumbar sprain/strain
superimposed on preexisting degenerative disc disease, and
spondylosis of the cervical and lumbar spine. He thought it
would be reasonable for Rajesh Patel, M.D., to perform a
spinal fusion at C5-6 and C6-7 due to the compensable injury.
Mr. Gwinn had not improved with conservative treatment and
had not yet reached maximum medical improvement.
15, 2012, Saghir Mir, M.D., performed an independent medical
evaluation in which he listed the compensable conditions as
lumbar and cervical sprain/strain. He diagnosed status
post-operative anterior discectomy at C5-6 and C6-7 and
lumbosacral sprain superimposed on preexisting degenerative
changes. Dr. Mir found Mr. Gwinn to be at maximum medical
improvement. He stated that he needed a couple of follow-up
visits for his neck surgery and Hydrocodone for pain. Dr. Mir
noted that Mr. Gwinn reported thoracic spine symptoms but
that the condition was not allowed in the claim. He assessed
25% impairment representing 21% for the cervical spine and 5%
for the lumbar spine. The claims administrator granted a 23%
permanent partial disability award on August 23, 2013. Mr.
Gwinn had previously received a 2% award for a lower back
Gwinn testified in a deposition on December 9, 2013, that he
had a prior work-related lumbar spine injury in September of
1999. Prior to the compensable injury at issue, he had no
neck or mid-back injuries and had undergone no treatment for
this mid-back. Mr. Gwinn stated that he was pulling and
yanking on parts on a motor when he felt a sharp pain in his
mid and lower back. Cervical symptoms began the next day. He
stated that his condition slowly worsened and he underwent
cervical fusion on October 11, 2012. He testified that he
currently has stabbing and shooting pain in his mid-back, low
back, buttocks, legs, and feet. Mr. Gwinn was currently
receiving no treatment for the mid-back. He was receiving
lumbar injections that provided 20% relief and said that
Brian Yee, M.D., wanted to see about spinal stimulation.
January 7, 2014, independent medical evaluation, Robert
Walker, M.D., assessed 25% cervical spine impairment. For the
thoracic spine, he found 7% impairment for loss of range of
motion. For the lumbar spine, he found 7% impairment. The
combined total was 35% impairment.
performed another independent medical evaluation on April 21,
2014, in which he diagnosed post-op anterior discectomy and
fusion at C5-6 and C6-7. He said there was lumbosacral strain
superimposed on preexisting degenerative changes. He noted
that he had previously found Mr. Gwinn to be at maximum
medical improvement and assessed 25% impairment. He stated
that Mr. Gwinn should be seen for follow-up visits and weaned
from Hydrocodone. He found no indication for a spinal cord
stimulator in this claim. Dr. Mir reviewed Dr. Walker's
evaluation and found that he did not consider the preexisting
changes in the cervical spine and that his lumbar range of
motion measurements were excessive.
June 12, 2014, addendum report, Dr. Walker clarified that Mr.
Gwinn had 25% cervical spine impairment, 7% lumbar spine
impairment, and 7% thoracic spine impairment. He subtracted
2% impairment for a prior award. His recommendation was
therefore 34% whole person impairment for the compensable
injury. A thoracic MRI taken August 15, 2014, showed
degenerative disc disease, shallow disc ...