Appeal No. 2051935) (Claim No. 2016017470)
Michael Messer, by Anne L. Wandling, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Coal Mac/Arch Coal, by Jeffrey M. Carder,
its attorney, filed a timely response.
issue on appeal concerns a request to add additional
diagnoses to the claim, as well as additional temporary total
disability benefits. This appeal arises from the Board of
Review's Final Order dated August 23, 2017, in which the
Board affirmed an April 13, 2017, Final Decision of the
Workers' Compensation Office of Judges. In its Order, the
Office of Judges affirmed the claims administrator's
Orders dated May 18, 2016, and October 19, 2016. In its Order
dated May 18, 2016, the claims administrator closed the claim
for temporary total disability benefits. In its Order dated
October 19, 2016, the claims administrator denied Mr.
Messer's request to add low back pain, lumbar spinal
stenosis, spondylosis of the lumbar spine, and neck pain as
compensable diagnoses. 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
to the injury at issue on appeal, Mr. Messer filed a
workers' compensation claim in 2015, Claim No.
555-185086, for an injury to his left knee and low back
sustained on April 24, 2015. The claim was held compensable
for left knee pain, lumbago, and lumbar radiculopathy. An MRI
dated September 22, 2015, revealed moderate spinal stenosis
at the L4-L5 level resulting in nerve encroachment and disc
bulging at L3-L4. Brian Francis, M.D., diagnosed Mr. Messer
with low back pain, lumbar spinal stenosis, and spondylosis
of the lumbar spine. Mr. Messer declined surgery and sought
physical therapy with Brookeview Physical Therapy, as well as
treatment with a chiropractor.
January 5, 2016, Mr. Messer sustained a compensable injury to
his cervical, thoracic, and lumbar spine after being jarred
while operating heavy machinery. On the date of injury, Mr.
Messer sought treatment with Alberto Fernandez, M.D., of
Williamson Memorial Hospital. Dr. Fernandez diagnosed Mr.
Messer with "severe sprain of neck and back." Dr.
Fernandez excused Mr. Messer from work until January 8, 2016,
and ordered an MRI. Dr. Fernandez also referred Mr. Messer to
Anthony Alberico, M.D., a neurosurgeon. The claims
administrator held the claim compensable for cervical
sprain/strain, thoracic sprain/strain, and lumbar
sprain/strain in an Order dated January 22, 2016. In a
separate Order dated January 25, 2016, the claims
administrator approved the request for a referral to a neuro
February 5, 2016, Mr. Messer attended an examination with Dr.
Alberico in Huntington, West Virginia. Dr. Alberico noted
that Mr. Messer "had an accident on April 16, 2015, at
which time he slipped and fell which is when the
patient's symptoms originally initiated. He maintains
that he had none of these symptoms prior to the
accident." Dr. Alberico reviewed the lumbar MRI taken on
September 22, 2015, in Claim No. 555-185086, noting that it
"shows a fairly severe stenosis at L4-L5 with lateral
recess stenosis." Dr. Alberico also reviewed Mr.
Messer's cervical CT scan taken at Williamson Memorial
Hospital on January 5, 2016, which noted cervical
spondylosis, most pronounced at C5-C6 and C6-C7. Dr. Alberico
discussed the possibility of anterior decompression surgery,
and recommended that Mr. Messer undergo a cervical MRI.
Messer underwent an MRI of his cervical spine at St.
Mary's Medical Center on March 18, 2016. The MRI revealed
multilevel degenerative changes with bilateral foraminal
stenosis, most severe on the left at the C5-C6 level. On
April 18, 2016, Mr. Messer attended a follow-up examination
with Dr. Alberico. Dr. Alberico reviewed the March 18, 2016,
MRI, which revealed degenerative disc disease at multiple
levels with disc bulging at C3-C4, C4-C5, C5-C6, and C6-C7.
At C5-C6, the disc appeared to be ossified suggesting a
longer pre-existing condition. Dr. Alberico compared the
March 18, 2016, MRI with the MRI dated September 22, 2015,
and assessed Mr. Messer as having severe lumbar spinal
stenosis and cervical disc disease at multiple levels, most
pronounced at C5-C6 on the left, to a less degree at C6-C7
and L3-L4. Dr. Alberico felt that Mr. Messer could benefit
from decompression at L4-L5 with extension, lateral recess,
and possibly placement of an interspinous device such as the
coflex. In addressing the relationship to the injury, Dr.
Alberico stated that Mr. Messer maintains that he never had
any symptoms whatsoever prior to his two accidents. Given the
circumstances, Dr. Alberico concluded that one would have to
assume that he exacerbated a pre-existing condition.
April 19, 2016, the claims administrator suspended temporary
total disability benefits in the claim on the basis that
"medical evidence has been received from your treating
physician on April 18, 2016, indicating that you have reached
maximum medical improvement from your injury effective April
18, 2016." By Order dated April 29, 2016, the request
for decompression of L4-L5 was denied, as the requested
treatment is not medically appropriate or recommended to
treat the compensable conditions related to the above work
injury. By Order dated May 18, 2016, the claims administrator
closed the claim for temporary total disability benefits.
August 23, 2016, Mr. Messer attended an examination with
Matthew Werthammer, M.D., who noted that he previously
examined Mr. Messer in relation to his prior injury. Dr.
Werthammer reviewed the MRI records and assessed Mr. Messer
with lumbar spondylosis, most severe at L4-L5 where he has
moderate to severe stenosis. Dr. Werthammer discussed
surgical options with Mr. Messer.
September 2, 2016, Mr. Messer underwent bilateral
decompressive laminectomies, inferior L4 and superior L5,
with bilateral foraminotomies at each level, performed by Dr.
Werthammer. The pre-operative and post-operative diagnosis
was severe L4-L5 stenosis with neurogenic claudication. The
indication listed for the operation was a 55-year old male
who presented with a longstanding history of chronic back
pain with worsening bilateral leg pain with associated
weakness and numbness.
Francis submitted a Diagnosis Update form on September 21,
2016. Dr. Francis requested that low back pain, lumbar spinal
stenosis, spondylosis of the lumbar spine, and neck pain be
added to the claim as compensable components. The record
contains reports from Dr. Francis dated May 8, 2015, through
November 6, 2015. The claims administrator denied the request
on October 19, 2016, and stated that the requested conditions
pre-existed the compensable injury in the claim. The claims
administrator also stated that the requested diagnoses are
not causally related to the compensable injury. Mr. Messer
filed a protest with the Office of Judges.
April 13, 2017, the Office of Judges issued a Final Decision
affirming the claims administrator Order dated October 19,
2016, which denied Mr. Messer's request to add low back
pain, lumbar spinal stenosis, spondylosis of the lumbar
spine, and neck pain as compensable components. The Office of
Judges determined that the conditions and symptoms of low
back pain, lumbar spinal stenosis, and lumbar spondylosis
pre-existed and continued through the January 6, 2015,
injury. The Office of Judges reasoned that Mr. Messer
sustained a prior injury to his back in April of 2015, which
resulted in him being treated for the condition through
December 30, 2015. So, prior to the January 5, 2016, injury,
Mr. Messer was diagnosed with low back pain, lumbar spinal
stenosis, and lumbar spondylosis. An MRI dated September 22,
2015, revealed lumbar spondylosis, lumbar stenosis, bulging
disc at L3-L4, and degenerative disease at L3-L4 and L5-S1.
The Office of Judges concluded that the claims administrator
was correct in denying the request to add additional
components to the current claim.
Final Decision, the Office of Judges also affirmed the May
18, 2016, Order of the claims administrator, which closed the
claim for temporary total disability benefits. The Office of
Judges found that there is no medical opinion of record
detailing that Mr. Messer cannot return to work or has not
reached his maximum medical improvement due to his
compensable sprains/strains. Instead, the Office of Judges
reasoned that his multiple pre-existing conditions and
non-compensable conditions are more likely than not the
reason he has not been able to return to work. Mr.
Messer's treating physician, Dr. Alberico, concluded that
although Mr. Messer continues to experience symptoms related
to his pre-existing degenerative conditions, his upper, mid,