Appeal No. 2051925 (Claim No. 2016011923)
Joey Austin, by Stephen New and Stacey Fragile, his
attorneys, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Murray American
Energy, Inc., by Denise Pentino and Aimee Stern, its
attorneys, filed a timely response.
issue on appeal is the closure of the claim for temporary
total disability benefits. On March 7, 2016, the claims
administrator closed the claim for temporary total disability
benefits. The Office of Judges affirmed the claims
administrator in its March 23, 2017, Order. The Order was
affirmed by the Board of Review on August 30, 2017. 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 and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Austin, a coal miner, injured his low back and neck when he
fell backwards while carrying a sixty pound water punch along
the bottom of the mine on October 31, 2015. Medical records
from Fairmont General Hospital show Mr. Austin was treated in
the emergency room for low back pain and tingling in his left
shoulder due to the fall at work. Lumbar spine and cervical
spine x-rays were both normal. He was diagnosed with acute
low back pain and paresthesia of the left arm. The
employee's and physician's report of injury, dated
the same day and signed by Mr. Austin, indicates he fell and
injured his back. The physician section of the report listed
diagnoses of acute low back pain status post fall and
paresthesia of the left arm. It also noted Mr. Austin would
be able to return to work on November 3, 2015.
days prior to the injury, on October 27, 2015, Mr. Austin
sought treatment from his family physician, Faisal Chaudhry,
M.D., for complaints of low back pain. The medical records
show Mr. Austin provided a history of bending over to get
clothes out of his car on October 26, 2015, when the left
side of his back started hurting. Dr. Chaudhry diagnosed low
back pain and left-sided sciatica. Dr. Chaudhry started Mr.
Austin on Prednisone and Zanaflex and recommended an
injection of the sacroiliac joint, which Mr. Austin refused.
Dr. Chaudhry recommended a follow-up appointment in three
Austin was seen by Daniel Farmer, FNP, at Dr. Chaudhry's
office on November 2, 2015. Mr. Farmer noted tenderness of
the mid and lower back region as well as neck pain. He
diagnosed lumbago with sciatica, pain in the thoracic spine,
pain in the left shoulder, and cervicalgia. X-rays of the
thoracic and lumbosacral spine showed normal alignment with
no bony lesions. A lumbar spine MRI performed on November 17,
2015, revealed L4-L5 degenerative disc disease with a broad
based disc protrusion, mild stenosis and significant
foraminal narrowing as well as an L5-S1 annular bulge causing
bilateral foraminal narrowing. Mr. Farmer diagnosed lumbago
with sciatica, unspecified side; pain in the left shoulder;
cervicalgia; and sciatica on the left side on November 23,
December 11, 2015, the claims administrator held the claim
compensable for sprain of ligaments of the lumbar spine and
authorized payment of temporary total disability benefits for
the period from November 1, 2015, through January 1, 2016.
The diagnoses of lumbago with sciatica and low back pain were
specifically listed as conditions that were not being covered
in the claim.
Hennessey, M.D., performed an independent medical evaluation
for the accepted diagnosis of lumbar sprain on January 21,
2016. Dr. Hennessey noted Mr. Austin's pain complaints
limited the range of motion testing as Mr. Austin complained
of pain after twenty degrees of trunk flexion even though he
was sitting up during the examination with required ninety
degrees of trunk flexion. Dr. Hennessey opined that Mr.
Austin had reached maximum medical improvement from the
lumbar strain/sprain. He did not recommend any additional
treatment as there was no residual physical impairment on
which to base treatment. Additionally, Mr. Austin told him
that no treatment worked, and West Virginia Code of State
Rule § 85-20 (2006) limited treatment for a lumbar
sprain to eight weeks.
February 3, 2016, Dr. Chaudhry noted that Mr. Austin's
continuing symptoms were due to the work injury. Mr.
Austin's significant issues related to the fall were
confirmed by MRI. Dr. Chaudhry noted that he would not
release Mr. Austin to return to work as he continued to have
issues with his neck, left arm, and lower back. Dr. Chaudhry
continued to recommend a referral to a neurosurgeon. The
claims administrator closed the claim for temporary total
disability benefits on March 7, 2016. This protest followed.
Hennessey prepared a supplemental report on March 18, 2016,
after reviewing the medical records of Dr. Chaudhry. Dr.
Hennessey noted that lumbago, or low back pain, is a symptom,
not a diagnosis. It is not a compensable injury. Mr. Austin
did not develop sciatica as that is a lay term for pain in
the lower limb. There is no injury to the sciatic root.
Therefore, the diagnosis should not be allowed. Cervicalgia,
or neck pain, is a symptom and not a diagnosis. Cervical
radiculopathy is not a compensable injury. Mr. Austin had no
myotomal or dermatomal symptoms or physical findings. The
intervertebral disc degeneration was not caused by the fall
but by aging.
Farmer, the nurse practitioner, testified via deposition on
May 10, 2016. He opined that Mr. Austin had left-sided
sciatica, lower back pain, left arm pain, neck pain, a C6-C7
disc bulge, a L5-S1 disc bulge and radiculopathy as a result
of the October 31, 2015, injury. In his opinion, Mr. Austin
had reached maximum medical improvement in regard to the
compensable condition of lumbar sprain.
Austin, M.D., a neurosurgeon, testified via deposition on
November 14, 2016, that she first evaluated Mr. Austin on
August 19, 2016. Mr. Austin's complaints included upper
neck pain, left arm pain, and dysesthesia as well as numerous
complaints of pain. On examination, Dr. Austin noted cervical
and thoracic spine spasms. Dr. Austin gave Mr. Austin three
shots to assist with his pain management and referred him
back to a pain specialist for cervical epidural injections.
In her opinion, Mr. Austin would not be able to go back to
work as a coal miner. However, he might be able to work in a
sedentary position. She opined that he was nearing maximum
medical improvement, but had not reached it yet. Dr. Austin
was treating Mr. Austin for neck pain, mid-back pain, and
lower back pain. In Dr. Austin's opinion, it takes a
lumbar strain between six and ten weeks to resolve. She would
have expected Mr. Austin's back symptoms to resolve by
the middle of January. Additionally, the cervical disc
herniation, the lumbar disc herniation, and thoracic pain
were keeping Mr. Austin from returning to work.
Office of Judges affirmed the claims administrator's
decision to close the claim for temporary total disability
benefits on March 23, 2017. It noted that in its previous
July 19, 2016, Order, the only compensable condition was the
lumbar sprain. Dr. Austin, one of Mr. Austin's treating
physicians, testified that the cervical disc herniation, the
lumbar disc herniation, and thoracic pain were keeping him
from returning to work. These are not compensable conditions.
Dr. Hennessey's opinion that Mr. Austin had reached
maximum medical improvement for the compensable condition was
not rebutted. As Mr. Austin had reached maximum medical
improvement, it was appropriate to close the ...