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Gwinn v. Winchester Mine, LLC

Supreme Court of West Virginia

December 19, 2017

THOMAS GWINN JR., Claimant Below, Petitioner
WINCHESTER MINE, LLC, Employer Below, Respondent

         (BOR Appeal No. 2051736) (Claim No. 2012032109)


         Petitioner 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.

         The 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.[1] 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.

         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.

         Mr. 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.

         A 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, and L4-5.

         The 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.

         On July 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.

         Paul 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.

         On July 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 injury.

         Mr. 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.

         In a 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.

         Dr. Mir 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.

         In a 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 ...

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