Appeal No. 2052151) (Claim No. 2016030789)
Consol of Kentucky, Inc., by James W. Heslep, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Larry W. White, by Donald C.
Wandling, his attorney, filed a timely response.
issues in this appeal deal with medical treatment and the
reopening of the claim for temporary total disability
benefits. On October 21, 2016, the self-insured Employer
entered an Order denying a request from Robert McCleary,
M.D., for a cervical and lumbar MRI. In an Order dated
January 31, 2017, the self-insured Employer denied Mr.
White's request for a referral to pain management and
continued physical therapy. The self-insured Employer closed
the claim for temporary total disability benefits in an Order
dated March 8, 2017. Mr. White protested the self-insured
August 10, 2017, the Workers' Compensation Office of
Judges reversed the self-insured Employer's October 21,
2016, Order, which denied the request for cervical and lumbar
MRIs. The Office of Judges also affirmed in-part, and
reversed, in-part, the self-insured Employer's Order
dated January 31, 2017. The Order was affirmed regarding the
denial of pain management and physical therapy for the
cervical and lumbar spine without prejudice pending the
results of the MRIs and any subsequent requests for diagnosis
update stemming from the results of the MRIs. The Order was
reversed regarding the denial of physical therapy for the
left shoulder with instructions that such is to be
authorized. Finally, the Office of Judges ordered that the
self-insured Employer's Order dated March 8, 2017,
closing the claim for temporary total disability benefits be
reversed with instructions that the claim remain open and
that Mr. White is granted benefits from the date of
suspension as substantiated by proper evidence. This appeal
arises from the Board of Review's Order dated November
17, 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 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
White, an equipment operator, has a history of seeking
chiropractic treatment for cervical and lumbar spine
conditions beginning in 2012. The employer submitted medical
records from Hill Chiropractic dated July 18, 2012, through
October 22, 2012, in which Mr. White sought treatment for
pain in his lower back, neck, hand, and upper back. Mr. White
was diagnosed with cervicalgia, thoracic spine pain, low back
pain, pain-wrist/hand, and muscle spasm. An MRI report of the
lumbar spine dated September 28, 2012, revealed degenerative
changes, superimposed small broad based disk protrusion seen
at L1-L2 asymmetric to the right, tiny disk protrusion
suspected at L5-S1 centrally extending inferiorly, some areas
of canal foraminal stenosis, possible tear of annulus at
L5-S1, and probable hemangiomas. The indication for the study
was low back pain to both lower extremities.
White injured his neck, back and left shoulder in a
work-related incident on May 18, 2016, when he slipped going
down the steps from his rock truck. The claim was held
compensable by Order dated July 12, 2016, for strain of
muscle, fascia and tendon at neck level; strain of muscle,
fascia and tendon of lower back; and strain of other
specified parts of the left shoulder girdle. The claims
administrator authorized left shoulder rotator cuff repair on
July 25, 2016. Subsequent imaging studies of Mr. White's
neck and low back did not identify any acute abnormalities.
The employer submitted a CT report of the lumbar spine dated
August 29, 2016, which revealed no acute findings. The
employer also submitted a CT report of the cervical spine
dated August 29, 2016, which revealed no acute bony
September 14, 2016, Robert McCleary, D.O., Mr. White's
treating physician, reported that Mr. White presented with
left shoulder rotator cuff repair, neck pain, and lower back
pain with right leg radiculopathy. It was noted that Mr.
White had been participating in physical therapy. Mr.
White's forward flexion of the left shoulder was 100
degrees. The assessment was sprain of other specified parts
of the left shoulder girdle; strain of muscle, fascia and
tendon at neck level; and strain of muscle fascia and tendon
of the lower back. Dr. McCleary recommended a cervical and
lumbar MRI to further assess Mr. White's condition.
October 6, 2016, Mr. White underwent an independent medical
evaluation with David Soulsby, M.D. Dr. Soulsby, an
orthopedic surgeon, reviewed Mr. White's medical records,
conducted a physical examination, and found no objective
medical evidence of ongoing conditions for Mr. White's
neck or low back. Dr. Soulsby did note that Mr. White's
shoulder required additional physical therapy following
surgical intervention. Dr. Soulsby concluded that Mr. White
had not reached maximum medical improvement at the time of
his evaluation and recommended that he complete a course of
upon Dr. Soulsby's report, the self-insured Employer
denied the request for authorization of MRI studies of the
lumbar and cervical spine in an Order dated October 21, 2016.
The Order noted that Dr. Soulsby found no indication of
ongoing pathology in Mr. White's neck or back. Mr. White
protested the self-insured Employer's Order.
White was evaluated again By Dr. Soulsby for another
independent medical evaluation on January 17, 2017. Mr.
White's range of motion was restricted beyond reasonable
expectation. Dr. Soulsby noted the presence of significant,
non-organic pain. Dr. Soulsby concluded that Mr. White had
reached maximum medical improvement and that he did not
require any additional physical therapy or medical
January 31, 2017, the self-insured Employer denied Mr.
White's requests from Dr. McCleary for continued physical
therapy and a referral to pain management. The decision was
based upon the independent medical evaluation of Dr. Soulsby
dated January 17, 2017, which determined that Mr. White had
reached maximum medical improvement. Mr. White protested the
self-insured Employer's Order.
March 8, 2017, the self-insured Employer closed the claim for
the payment of temporary total disability benefits. In the
Order, it was noted that Dr. Soulsby had determined that Mr.
White reached his maximum degree of medical improvement. Mr.
White protested the self-insured Employer's Order.
Order dated August 10, 2017, the Office of Judges reversed
the denial of cervical spine and lumbar spine MRI studies.
The Office of Judges also reversed the denial of physical
therapy and affirmed the denial of pain management services
pending outcome of the MRI studies. Finally, the Office of
Judges reversed the closure of temporary total disability
benefits and ordered that the claim remain open for the
payment of such benefits upon receipt ...