Appeal No. 2051900, Claim No. 2015020836
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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
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.
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 ...