SAINT-GOBAIN CERAMICS & PLASTICS, INC., Employer Below, Petitioner
CHRISTOPHER S. RUSH, Claimant Below, Respondent
Appeal No. 2052021 (Claim No. 2012022565)
Saint-Gobain Ceramics & Plastics, Inc., by James W. Heslep,
its attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review
issue on appeal is whether Mr. Rush is entitled to the
requested medical benefits in this claim. In an Order dated
June 7, 2016, the claims administrator denied authorization
to reopen the claim for medical benefits and for emergency
department treatment at St. Joseph's Hospital on April
30, 2016. The Office of Judges reversed the claims
administrator's decision, and ordered that Mr. Rush be
granted retroactive authorization for the April 30, 2016,
emergency department visit at St. Joseph's Hospital. The
Office of Judges further Ordered that the claim remain open
for medical benefits. This appeal arises from the Board of
Review's Final Order dated October 4, 2017, in which the
Board affirmed the Order of the Office of Judges. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
Court has considered the employer's brief 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 brief of Saint-Gobain Ceramics
& Plastics, Inc., 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
Rush is a maintenance worker at Corhart Refractories
Corporation's production facility. He sustained a
compensable lumbar spine injury while removing a pump from a
box while working on October 10, 2011. The claim was held
compensable for lumbar strain by a claims administrator Order
dated January 25, 2012. The Order did not hold
neuralgia/neuritis as a compensable condition.
Rush underwent an MRI on April 19, 2013, which revealed a
large left-sided disc herniation at the L3-L4 level. The
imaging also revealed a disc bulge at the L4-L5 level, as
well as a synovial cyst at that level. The report stated that
there was a disc bulge at the L5-S1 level that had some
contact with the exiting right L5 nerve root. Mr. Rush was
referred to a neurosurgeon.
13, 2014, Mr. Rush underwent a second MRI, which showed mild
bulging at L5-S1, with mild facet osteophyte disease on the
right. No spinal canal or foraminal stenosis was observed. At
L4-L5, there was mild loss of height in signal intensity. A
small central disc protrusion was seen with a small area of
increased signal intensity in annulus compatible with annular
fissure. No foraminal stenosis or spinal canal stenosis was
seen. The L3-L4 disc showed loss of disc height and signal
intensity. Central and left central disc herniation was
noted. The impression listed was degenerative disc disease
with small herniation seen at L3-L4 and L4-L5 levels. On
April 25, 2014, the claims administrator authorized the MRI
and the approval of physical therapy from March 11, 2014, to
June 17, 2014.
Rush saw Joseph Grady, M.D., on October 14, 2013, for an
independent medical evaluation. According to Dr. Grady, Mr.
Rush felt a sudden onset of pain in his lumbar spine that
radiated to the right leg when he lifted a pump from a box.
Mr. Rush continued working and sought treatment with his
primary care physician, John Mathis, M.D., on January 13,
2012. Dr. Mathis prescribed physical therapy, which provided
some relief. At the time of his evaluation with Dr. Grady,
Mr. Rush reported no tenderness, and his straight-leg raising
tests were negative. Dr. Grady diagnosed lumbar sprain with a
reported lumbar disc herniation at L3-L4, with bulging discs
from L4 to S1. Dr. Grady observed no signs of radiculopathy.
Dr. Grady noted that Mr. Rush's lumbar spine continued to
be symptomatic. Dr. Grady found that Mr. Rush had reached his
maximum degree of medical improvement, and utilized the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed.
1993), to find that Mr. Rush has 0% impairment for his
October 25, 2013, the claims administrator granted Mr. Rush a
0% permanent partial disability award based upon Dr.
Grady's medical evaluation. The claims
administrator's decision was affirmed by the Office of
Judges in an Order dated January 7, 2015.
August 11, 2014, the claims administrator approved several
additional conditions to Mr. Rush's claim. The conditions
of displacement of the lumbar intervertebral disc without
myelopathy, overexertion and strenuous movements, and sprain
of the lumbar region were added to the claim as compensable
components. The claims administrator's decision to
include the additional components was based upon Mr.
Rush's MRI dated April 19, 2013.
April 30, 2016, Mr. Rush reported to the emergency room at
St. Joseph's Hospital with complaints of low back pain.
The clinical notes from that emergency room encounter state
that Mr. Rush had not sustained any recent, known injury to
his low back. Mr. Rush was diagnosed with acute chronic low
back pain. He was treated and discharged in stable condition.
Subsequent to his emergency room visit, Mr. Rush sought
coverage under his current workers' compensation claim.
response to his request for coverage for the emergency room
visit, the claims administrator requested that Syam Stoll,
M.D., review the claim. Dr. Stoll provided a Physician's
Review report on June 3, 2016, and noted that Mr. Rush
sustained a lumbar sprain/strain injury approximately five
years earlier. Based on the age of the injury, and the lack
of ongoing treatment, Dr. Stoll recommended that Mr.
Rush's treatment for low back pain not be covered under
Mr. Rush's workers' compensation claim. By Order
dated June 7, 2016, the claims administrator denied Mr.
Rush's request to reopen the claim for treatment for low
back pain. Mr. Rush protested the claims administrator's
deposition of Mr. Rush was taken on November 10, 2016. Mr.
Rush testified that he continued to work following his work
related injury on October 10, 2011, and he experienced some
lumbar flare-ups after that time. He stated that his symptoms
increased to the point that he had to seek treatment at St.
Joseph's Hospital on April 30, 2016, where he presented
with complaints of low back pain radiating to his lower
extremity. Mr. Rush denied any intervening injuries, and he
testified that, while working, he took care not to reinjure
his back. Although his current symptoms are in the same
location as the compensable injury, Mr. Rush testified that
his current pain is sharper than what it was previously. Mr.
Rush testified that the severe pain rendered him unable to
perform basic activities of daily living, including the
ability to dress.
appeal, the Office of Judges addressed the claims
administrator's reopening determination, as well as Mr.
Rush's request for retroactive authorization for his
emergency room visit. The Office of Judges found that the
claims administrator was clearly wrong when it suggested that
Mr. Rush needed to reopen his claim for benefits. Although
Mr. Rush's last authorized treatment was twenty-two
months prior to his request for authorized treatment at St.
Joseph's Hospital, the Office of Judges determined that
he was within the five-year period for additional treatment
enumerated in West Virginia Code § 23-4-16(a)(4) (2005).
The Office of Judges found that the evidence shows that Mr.
Rush had no lumbar symptoms or injuries prior to his date of
injury of October 10, 2011, and concluded that Mr. Rush is
entitled to treatment for his herniated lumbar disc and
ongoing symptoms. The claims administrator's Order dated
June 7, 2016, was reversed, and the Office of Judges held
that it is more likely than not that the medical services
that were provided at St. Joseph's ...