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Gunter v. Summers County Board of Education

Supreme Court of West Virginia

March 21, 2018

VICKI GUNTER, Claimant Below, Petitioner
v.
SUMMERS COUNTY BOARD OF EDUCATION, Employer Below, Respondent

          BOR Appeal No. 2051900, Claim No. 2015020836

          MEMORANDUM DECISION

         Petitioner Vicki Gunter, by John Shumate Jr., her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Summers County Board of Education, by Marion Ray, its attorney, filed a timely response.

         The issue on appeal is whether additional medical treatment should be authorized and whether an additional diagnosis should be allowed. On September 9, 2016, the claims administrator denied a request for a referral to John Schmidt, M.D. On October 13, 2016, the claims administrator denied a request to add radiculopathy of the lumbar region as a secondary condition in the claim. The Office of Judges affirmed both of the decisions in its March 27, 2017, Order. The Order was affirmed by the Board of Review on September 29, 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.

         Ms. Gunter, a kitchen worker for Summers County Board of Education, injured her back on January 29, 2015, when she slipped on the floor and fell. Ms. Gunter was treated in the emergency room at Summers County ARH Hospital for back pain after a fall at work. X-rays of the lumbar spine were normal. Ms. Gunter was diagnosed with a lumbar sprain. The claim was accepted as compensable for a lumbar sprain/strain on February 6, 2015.

         Ms. Gunter sought treatment at the Family Care Clinic in February and March of 2015 for continued lower back pain radiating to her right thigh. Ms. Gunter had lumbar paraspinal tenderness and sacroiliac tenderness. She was given an injection, prescribed medication, and referred for physical therapy and a lumbar spine MRI. Ms. Gunter participated in physical therapy, which did little to ease her pain. The lumbar spine MRI showed mild degenerative disc disease and a mild bulging disc in the lumbar spine.

         On May 6, 2015, Ms. Gunter was seen by John Schmidt, M.D., in consultation for her low back and right leg pain. Dr. Schmidt noted that Ms. Gunter's leg pain radiated posteriorly down her leg to just below the knee and she also felt that her right leg was weak. The pain started after a fall at work in January and had progressively worsened. It was made worse by sitting or standing too long as well as with physical activity. Ms. Gunter walked with a non-antalgic gait. The range of motion of the joints was full, painless, and without instability. She had normal muscle tone without atrophy, swelling, or tenderness, and her deep tendon reflexes were equal and intact. There were no pathologic reflexes, spasticity, or clonus. Straight leg testing produced back pain. Dr. Schmidt's impression was low back pain and lumbar radiculopathy. He recommended a referral to pain management and continued physical therapy.

         Ms. Gunter was seen by Brian Yee, M.D., a pain specialist, on July 14, 2015, for an evaluation of lower back and right leg pain. Ms. Gunter complained of constant pain in the right lower back which radiated down the right buttock and posterior right leg to the knee. Dr. Yee noted her heel and toe walking were abnormal and straight leg testing was unable to be completed. He also noted Ms. Gunter's effort during motor strength testing was extremely poor. Dr. Yee diagnosed lumbar sprain, lumbar disc degeneration, and lumbar radiculopathy and recommended she undergo EMG/NCS testing. Dr. Yee noted Ms. Gunter had excessive pain behaviors and more pain and weakness than would be expected based on the imaging studies.

         Barry Vaught, M.D., performed EMG/NCS testing on September 23, 2015. It revealed no electrophysiologic evidence of lumbosacral radiculopathy on either side. Dr. Yee saw Ms. Gunter on October 15, 2015, for follow-up. Ms. Gunter complained of increased pain with sitting, standing, and walking, as well as difficulty raising her right leg. Dr. Yee listed her active problems as low back pain, lumbar intervertebral disc degeneration, lumbar intervertebral disc displacement, and lumbar radiculopathy. He noted there were no significant findings on the EMG and only minimal findings on the MRI. He found her pain complaints to be excessive. Dr. Yee diagnosed lumbar sprain, lumbar disc degeneration, bulging lumbar disc, and lumbar radiculopathy. He recommended work hardening and physical therapy.

         Prasadarao Mukkamala, M.D., performed an independent medical evaluation on November 17, 2015. He diagnosed a lumbar sprain and opined that Ms. Gunter had reached maximum medical improvement. Dr. Mukkamala did not believe Ms. Gunter needed any additional medical treatment for the compensable lumbar sprain.

         On December 8, 2015, Ms. Gunter was treated at the Family Care Clinic. The primary diagnosis was lumbar spine sprain and the secondary diagnosis was lumbar radiculopathy. The plan was to refer Ms. Gunter back to Dr. Schmidt's office. On March 8, 2016, Dr. Yee diagnosed active problems of low back pain, lumbar disc degeneration, lumbar disc displacement, and lumbar radiculopathy. He noted extreme pain behaviors and recommended Ms. Gunter undergo an EMG of the lower extremities, a lumbar MRI, and a return visit to Dr. Schmidt for a consultation. Dr. Yee diagnosed lumbar sprain, lumbar disc degeneration, and lumbar radiculopathy.

         A June 3, 2016, lumbar MRI revealed degenerative disc disease, facet disease, and spondylosis. There was disc bulging at L1-L2 and L2-L3 without nerve root compromise; L3-L4 disc bulge and facet degenerative changes resulting in mild lateral spinal canal stenosis; L4-L5 disc bulge with contact with the right-sided nerve roots; facet degenerative changes resulting in mild lateral canal stenosis; L5-S1 central disc protrusion with contact at the bilateral exiting nerve roots; and sacroiliac joint arthropathy. Dr. Vaught performed additional EMG/NCS testing on June 7, 2016, which revealed reduced activation in the right likely due to pain and poor effort. There were no neuropathic findings in the bilateral lower extremities.

         During a June 14, 2016, visit with Dr. Yee, it was noted that Ms. Gunter had tenderness to palpation of the lumbar and thoracic spines as well as right sacroiliac joint tenderness. Dr. Yee diagnosed lumbar disc degeneration, a bulging lumbar disc, and lumbar radiculopathy. He recommended a referral to Dr. Schmidt for her intervertebral disc degeneration. Dr. Yee observed Ms. Gunter as she left his office. She had minimal gait disturbance with complete heel/toe walking, no pelvic tilt compensating for her weak hip flexion, and no hip drop.

         Syam Stoll, M.D., performed a records review regarding Ms. Gunter's request for a referral to Dr. Schmidt on June 27, 2016. Dr. Stoll opined that the referral may be indicated due to degenerative spine disease, not due to the ...


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