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Cochran v. West Virginia United Health System

Supreme Court of West Virginia

May 7, 2018

GINA D. COCHRAN, Claimant Below, Petitioner
v.
WEST VIRGINIA UNITED HEALTH SYSTEM, Employer Below, Respondent

          BOR Appeal No. 2051821, (Claim No. 2014029645)

          MEMORANDUM DECISION

         Petitioner 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.

         The 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 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 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.

         Gina 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.

         Prior 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 humerus.

         On 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.

         Ms. 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 subscapular bursitis.

         A June 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.

         In a 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.

         Prasadarao 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.

         The 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 the injury.

         On 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.

         On 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. ...


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