Appeal No. 2051514 (Claim No. 2014033757)
Huntington Alloys Corporation, by Steven K. Wellman, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Patrick Wheeler,
by Cathy L. Greiner, his attorney, filed a timely response.
issue on appeal is whether lumbar disc
herniation/displacement and cervical disc
herniation/displacement should be added as a compensable
injury and whether the claim should be reopened for temporary
total disability benefits. The claims administrator denied a
request to reopen the claim for temporary total disability
benefits on June 18, 2015. The claims administrator denied a
request for the addition of lumbar disc
herniation/displacement and cervical disc
herniation/displacement as compensable conditions on July 24,
2015. The Office of Judges reversed both of the claims
administrator's decisions, approved both the lumbar disc
herniation/displacement and cervical disc
herniation/displacement as compensable conditions, and
approved the requested temporary total disability benefits on
August 19, 2016. The Board of Review affirmed the Order of
the Office of Judges on December 16, 2016. 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. For these
reasons, a memorandum decision is appropriate under Rule 21
of the Rules of Appellate Procedure.
Wheeler, a steel worker at Huntington Alloys Corporation,
injured his neck and back while attempting to lift a panel at
work on May 18, 2014. The following day, Allen Young, M.D.,
treated Mr. Wheeler, who reported that he was injured when he
caught a falling breaker panel door, which jerked his neck
and lower back. Dr. Young diagnosed sprains of the lumbar
spine and cervical spine. Dr. Young also noted Mr.
Wheeler's prior history of upper and lower back problems,
which started in 2005 with a lumbar sprain.
November 2, 2006, a lumbar spine MRI revealed that the spinal
canal appeared congenitally narrow at all levels. The
narrowing was significantly exacerbated at L3-4 and L4-5,
secondary to diffuse disc bulge and facet degenerative
changes, which resulted in central canal narrowing as well as
bilateral foraminal narrowing most severe at L4-5. In 2009,
Mr. Wheeler was treated for numbness in his left arm. In a
November 26, 2012, report, Allan Koester, M.D., stated that
he treated Mr. Wheeler who reported a four-year history of
his right arm giving out as well as numbness. Cervical spine
x-rays demonstrated some diffuse osteoarthritic changes in
the lower cervical spine. On February 7, 2013, a cervical MRI
revealed multilevel degenerative disc disease with severe
canal stenosis and a disc herniation at C3-4. Mr. Wheeler was
referred to Panos Ignatiadis, M.D., a neurosurgeon. Dr.
Ignatiadis noted that the MRI showed multiple degenerative
changes, specifically at C3-4, C5-6, and to a lesser extent
at C6-7. He diagnosed cervical radiculopathy at C5-7 on the
right, carpal tunnel on the right, and left L4 radiculopathy.
11, 2013, Mr. Wheeler underwent a lumbar MRI that showed a
broad-based disc bulge with facet degenerative changes at
L3-4 and L4-5, causing moderate central canal narrowing and
foraminal narrowing. On May 15, 2015, Mr. Wheeler underwent
nerve conduction studies by Carl McComas, M.D., which
revealed evidence of denervation, reinnervation, and dropout
of motor unit potentials in the right triceps and extensor
carpi ulnaris muscles. Dr. McComas stated that the study was
consistent with borderline right ulnar neuropathy and a
moderate chronic right C7 radiculopathy. David Caraway, M.D.,
a pain specialist, recommended cervical epidural steroid
injections on July 30, 2013.
the compensable injury on May 28, 2014, Mr. Wheeler underwent
a lumbar MRI, which showed degenerative changes superimposed
on congenital spinal stenosis, resulting in moderate spinal
canal and lateral recess stenosis from L2-5. Rodger Blake,
M.D., the examiner, commented that when compared to the
previous study, there was a right posterior lateral small
disc protrusion just prior to the entry of the lateral recess
at T12-L1. On September 30, 2014, the claims administrator
held the claim compensable for lumbar sprain, thoracic
sprain, and neck sprain.
Mukkamala, M.D., performed an independent medical evaluation
of Mr. Wheeler on January 20, 2015. Dr. Mukkamala found that
Mr. Wheeler had reached maximum medical improvement and
required no further treatment other than a home exercise
program. He commented that Mr. Wheeler demonstrated a
significant degree of symptom magnification. He further
stated there was no indication for a neurosurgical
consultation, any further investigation, or a pain management
referral. At the time of his examination, Mr. Wheeler
complained of pain and stiffness in his low back, his left
leg giving out, pain in both hips, and numbness in both arms.
Dr. Mukkamala opined that Mr. Wheeler suffered from 11% whole
person impairment attributable to the compensable injury.
April 4, 2015, cervical MRI revealed significant multilevel
degenerative changes and disc disease, causing moderate to
severe central canal stenosis and cord compression. On May
13, 2015, Mr. Wheeler was evaluated by Dr. Ignatiadis who
diagnosed severe myelopathy due to cord compression from a
disc herniation at C2-4, which had been dormant and was
aroused by the compensable injury of May 18, 2014. Dr.
Ignatiadis noted that he had previously seen Mr. Wheeler in
April of 2013 for neck pain and at that time, he had no
evidence of myelopathy. On May 21, 2015, Mr. Wheeler
underwent an anterior discectomy and fusion at C3-4 for
severe disc herniation, cord compression, stenosis, and
week after surgery, Dr. Young saw Mr. Wheeler for a
follow-up. Dr. Young stated that based upon the report from
Dr. Ignatiadis, he would send the information to the claims
administrator to see if the claim could be reopened for
temporary total disability benefits. Dr. Young completed an
application for temporary total disability benefits
suggesting Mr. Wheeler should receive them from May 18, 2014,
through September 11, 2015. On June 18, 2015, the claims
administrator denied the request to reopen the claim for
temporary total disability benefits. On June 30, 2015, Dr.
Young completed a diagnosis update requesting the addition of
lumbar disc herniation/displacement and cervical disc
herniation/displacement to the claim. The claims
administrator denied this request on July 24, 2015.
Bailey, M.D., performed an independent medical evaluation of
Mr. Wheeler on May 5, 2016. Dr. Bailey opined that Mr.
Wheeler suffered from chronic whole spine pain with all four
extremity complaints of pain and paresthesia. She stated that
Mr. Wheeler's subjective complaints far outweighed his
physical findings. She observed that his complaints of
bilateral whole arm and bilateral whole leg symptoms were not
anatomic and were nondermatomal. She performed a range of
motion study which she described as pain-restricted. Dr.
Bailey opined that Mr. Wheeler had sustained simple sprains
and strains of the cervical, thoracic, and lumbar spine as a
result of the compensable injury and that his present
complaints pre-existed the compensable injury. Dr. Bailey
believed that Mr. Wheeler had reached maximum medical
improvement. She opined that any surgical intervention was
solely a result of the progression of his degenerative disc
disease, degenerative joint disease, and disc osteophyte
complexes. She stated that Mr. Wheeler's need for surgery
would have occurred in the absence of his compensable injury.
19, 2016, the Office of Judges determined that the claim was
compensable for lumbar disc herniation/displacement and
cervical disc herniation/displacement. Because the request
for temporary total disability benefits arose from the now
compensable conditions and cervical spine surgery, the Office
of Judges determined that temporary total disability benefits
should be granted as well. The Office of Judges determined
that the most reliable and credible reports of record were
the reports of Dr. Ignatiadis, a neurosurgeon, and Dr. Blake,
who identified a new pathology after the compensable injury
on May 28, 2014. Dr. Ignatiadis stated that the compensable
jerking injury aroused the dormant, pre-existing condition,
inducing myelopathy. The Office of Judges did not consider
Dr. Mukkamala's report because he did not render an
opinion as to whether the lumbar and cervical disc
herniations/displacements were compensable conditions. The
Office of Judges determined that Dr. Ignatiadis was in a
better position to render a diagnosis on this issue because
neurosurgery is his specialty and he performed surgery on Mr.
Wheeler. Further, his report was supported by the findings of
Dr. Blake. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order on December 16, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
Office of Judges, as the finder of fact, found that Dr.
Ignatiadis's diagnoses were more persuasive and further
supported by the evidence than the other opinions of record.
Dr. Ignatiadis stated, in reference to the cervical spine,
that the compensable jerking injury aroused Mr. Wheeler's
dormant pre-existing condition inducing myelopathy. Dr.
Ignatiadis noted that he had previously treated Mr. Wheeler
in April of 2013 for neck pain, and at that time, there was
no evidence of myelopathy. In regard to the lumbar spine,
studies taken prior to the compensable injury showed a disc
bulge and degenerative changes at L3-4 and L4-5. An MRI taken
after the compensable injury occurred revealed a right
posterior lateral small disc protrusion just prior to the
entry of the lateral ...