GINA D. COCHRAN, Claimant Below, Petitioner
WEST VIRGINIA UNITED HEALTH SYSTEM, Employer Below, Respondent
Appeal No. 2051821, (Claim No. 2014029645)
Gina D. Cochran, by William C. Gallagher, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. West Virginia United Health
System, by Katherine Arritt and Jeffrey Brannon, its
attorneys, filed a timely response.
issues on appeal are whether cervical radiculopathy and
cervical stenosis should be added as compensable components
of the claim and whether the proposed medical treatment is
due to the injury. On January 11, 2016, the claims
administrator denied a request to add cervical radiculopathy
and cervical stenosis as compensable components of the claim.
On February 24, 2016, the claims administrator denied a
request for authorization of EMG/NCS testing of the right
shoulder and denied authorization for cortisone injections.
The Office of Judges reversed the claims administrator's
January 11, 2016, decision and added cervical sprain/strain
and cervical radiculopathy as compensable components of the
claim. The Office of Judges also reversed the claims
administrator's February 24, 2016, decision and
authorized the requested medical treatment. In its July 18,
2017, Order, the Board of Review affirmed the addition of
cervical sprain as compensable, reversed the addition of
cervical radiculopathy as a compensable condition, and
reversed the authorization for the EMG/NCS testing. 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 that the Board of Review's decision is
based upon an erroneous conclusion of law, in part. This case
satisfies the "limited circumstances" requirement
of Rule 21(d) of the Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.
Cochran, a sonographer, was injured on April 5, 2014, when
she was performing an ultrasound on a patient. She completed
a report of injury on April 8, 2014, which shows she injured
her shoulder girdle on April 5, 2014, when she was assisting
a patient off an exam table and the patient reared back,
causing resistance. She experienced sharp pain in her right
shoulder area. The physician section of the form was
completed by George Tokodi, D.O. He diagnosed a right
shoulder sprain and subscapular bursitis in the right
shoulder. The claims administrator held the claim compensable
for a right shoulder sprain on April 22, 2014.
to the April 5, 2014, injury, on May 22, 2009, Ms. Cochran
had an MRI of the right shoulder which showed broad posterior
spurs with accompanying discs at the mid and lower cervical
spine resulting in moderate central canal stenosis at C3-C4
and C4-C5 and mild central canal stenosis at C5-C6. In a June
1, 2009, typed statement, Ms. Cochran noted she was
performing ultrasounds on April 23, 2009, when she began to
experience pain in her shoulder girdle and neck. In a first
report of injury also dated June 1, 2009, Ms. Cochran alleged
she was injured on April 23, 2009, due to repetitive motion
when she was performing ultrasounds. She alleged injuries to
her right shoulder, cervical spine, right scapula, and right
April 29, 2014, Dr. Tokodi injected Ms. Cochran's right
shoulder with Depo-Medrol. He noted she had a good response
following the injection. He also noted he would need to
perform an MRI if she continued to have problems. An August
1, 2014, right shoulder MRI revealed mild tendinopathy, a
full-thickness anterior supraspinatus tear, possible mild
partial thickness articular surface tear of the more
posterior supraspinatus, and infraspinatus tendons with small
subacromial subdeltoid bursa effusion. Comparison was made to
a May 22, 2009, right shoulder MRI. The mild tendinopathy was
seen on the previous study. However, the anterior
supraspinatus tear was new, as was the possible mild
partial-thickness articular surface tear.
Cochran underwent a right shoulder arthroplasty with
subacromial decompression on November 20, 2014. The pre and
post-operative diagnosis was right shoulder impingement. On
April 27, 2015, the claims administrator authorized Dr.
Tokodi's request to add sprain/strain to the scapula,
trapezoid muscle, and subscapular bursitis to the claim. The
compensable diagnoses now included right shoulder
sprain/strain, right scapula sprain/strain, right rotator
cuff tear, right trapezoid sprain/strain, and right
18, 2015, cervical MRI showed severe degenerative changes
from C3 through C7 with large disc osteophyte complexes
resulting in moderate to severe central canal narrowing and
severe bilateral neuroforaminal narrowing at most levels. The
claims administrator denied Ms. Cochran's request to add
cervical disc herniation as a compensable condition on August
21, 2015. In an October 5, 2015, letter, Dr. Tokodi stated
that Ms. Cochran had underlying cervical stenosis prior to
her work injury. The cervical stenosis became symptomatic as
a result of increased use of her neck due to the inability to
use her shoulder. She now had radicular pains down the right
arm. Therefore, cervical radiculopathy and cervical stenosis
should be added to the claim.
November 11, 2015, Diagnosis Update, Dr. Tokodi diagnosed
cervical radiculopathy, cervical disc degeneration, spinal
stenosis, and neck sprain. He noted Ms. Cochran continued to
have pain in her right shoulder girdle and neck radiating
down her right arm. Her cervical stenosis was asymptomatic
prior to the injury, but she had developed cervical
radiculopathy due to the increased use of her neck to
compensate for her right shoulder. The MRI showed worsening
of the spinal stenosis since the injury.
Mukkamala, M.D., performed an independent medical evaluation
on December 31, 2015. He diagnosed a rotator cuff sprain of
the right shoulder that had been treated with subacromial
decompression. He did not believe Ms. Cochran had an
impairment as a result of the injury. He opined that the
cervical stenosis was a degenerative condition and that
cervical stenosis can cause cervical radiculopathy. Dr.
Mukkamala found no objective evidence of radiculopathy. He
opined that the cervical symptoms and cervical spondylosis
were not related to the injury. Cervical stenosis is a
degenerative condition. Dr. Mukkamala did not believe a
neurosurgical consultation was necessary. He recommended Ms.
Cochran participate in a self-administered stretching program
for the neck and upper extremities.
claims administrator denied a request to add cervical
radiculopathy and cervical stenosis as compensable components
of the claim on January 11, 2016. In a written note dated
January 20, 2016, Dr. Tokodi recorded his disagreement with
Dr. Mukkamala's opinion. Dr. Tokodi opined that Ms.
Cochran had impingement of the shoulder and cervical
radiculopathy, caused by the cervical stenosis. After the
initial shoulder injury, she over-compensated and the
cervical stenosis became symptomatic. Overcompensating with
excessive movement in the neck aggravated the nerve roots
going into the arm. She did not have the symptoms prior to
February 16, 2016, in response to a grievance regarding the
January 20, 2016, denial of the EMG/NCS testing, a re-review
was completed. The claims administrator denied the testing on
re-review as Ms. Cochran was at maximum medical improvement
according to Dr. Mukkamala's December 31, 2015, report.
EMG/NCS nerve testing performed on February 17, 2016,
revealed moderate right carpal tunnel and chronic C8 and
possible C7 radiculopathy on the right. In response to a
grievance regarding the January 20, 2016, denial of cortisone
injections, a re-review was completed on February 24, 2016.
The claims administrator denied the cortisone injections on
re-review Ms. Cochran had reached maximum medical improvement
according to Dr. Mukkamala's December 31, 2015, report.
March 11, 2016, Daryl Sybert, D.O., performed an orthopedic
spine consultation. He diagnosed neck pain with underlying
cervical stenosis with radicular right arm pain. On March 21,
2016, Ms. Cochran was seen by Kelly Lindsay, M.D., for
complaints of neck and right upper arm pain. Dr. Lindsay
diagnosed carpal tunnel syndrome and cervical radicular pain.
He also opined she could have a brachial neuritis. ...