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Arch Coal, Inc. v. Wisenbaler

Supreme Court of West Virginia

May 7, 2018

ARCH COAL, INC., Employer Below, Petitioner
JAMES WISENBALER, Claimant Below, Respondent

          BOR Appeal No. 2052107 (Claim No. 2014033043)


         Petitioner Arch Coal, Inc., by Jeffrey Carder, its attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. James Wisenbaler, by Christopher J. Wallace, his attorney, filed a timely response.

         The issues on appeal are whether lumbar herniated disc should be added as a compensable condition, whether additional medical treatment should be authorized, and whether Mr. Wisenbaler's claim should be reopened for temporary total disability benefits. On May 20, 2016, the claims administrator closed the claim for temporary total disability benefits. On June 22, 2016, the claims administrator denied authorization for a second left microlumbar discectomy. On November 7, 2016, the claims administrator denied a request to add displaced lumbar intervertebral disc (herniated disc) as a secondary condition, and on November 23, 2016, the claims administrator denied authorization for selective nerve root blocks. The Office of Judges reversed each one of the claims administrator's decisions in its July 24, 2017, Order. The Order was affirmed by the Board of Review on November 2, 2017. 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 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 Procedure.

         Mr. Wisenbaler, a laborer, injured his low back on May 12, 2014, when he dropped ventilation tubing, slipped over rock, and felt pain in his back. His claim was held compensable for a lumbar sprain/strain on May 19, 2014. Mr. Wisenbaler had a preexisting history of lumbar spine problems dating back to October of 2000, when he injured his lumbar spine unloading scaffolding. A March 25, 2001, lumbar MRI revealed degenerative changes and disc bulges at the L3-L4 through L5-S1 levels as well as narrowing of the thecal sac. Due to continued problems with his lumbar spine in 2001 and 2000, David Lynch, M.D., performed an independent medical evaluation on January 21, 2003. Dr. Lynch had evaluated Mr. Wisenbaler two times before. Dr. Lynch noted that Mr. Wisenbaler had declined vocational rehabilitation services and pain management. Mr. Wisenbaler noted constant low back pain with intermittent symptoms down his right leg consisting of numbness and tingling in the leg and a burning sensation in his toes. Dr. Lynch noted Mr. Wisenbaler showed symptom magnification on his last visit and was unable to do range of motion testing. Dr. Lynch diagnosed chronic pain syndrome, history of lumbosacral strain, history of degenerative changes with disc bulges, non-surgical lesion, and non-focal neurologic examination. Dr. Lynch opined that Mr. Wisenbaler had 15% whole person impairment. He noted that number may be inflated due to Mr. Wisenbaler's fear and pain limiting him from true range of motion.

         On October 23, 2003, P. Kent Thrush, M.D., performed an independent medical evaluation. He noted that Mr. Wisenbaler complained of constant aching in his low back, which was aggravated by bending, lifting, and prolonged sitting. He also had occasional pain radiating down his right leg and tingling in the left foot. His symptoms had increased over the last year. Dr. Thrush diagnosed lumbar sprain and early to moderate spinal stenosis of the lumbar spine with disc bulging at L3-L4, L4-L5, and L5-S1. He opined that the stenosis may increase over time and recommended Mr. Wisenbaler find a job that did not require a lot of repetitive heavy lifting and/or bending due to his back problems, spinal stenosis, degenerative changes and disc bulging. In an October 30, 2003, addendum, Dr. Thrush opined that Mr. Wisenbaler had "considerable degenerative changes in his back for someone only 30 years old". He agreed with the recommendation not to proceed with surgery as Mr. Wisenbaler had a difficult problem with multilevel disease and no one large single disc herniation.

         After Mr. Wisenbaler's May 12, 2014 injury, a lumbar spine MRI was performed on May 30, 2014. It revealed evidence of mild facet arthropathy at all levels; disc bulging at L3-L4 with a small central disc protrusion; diffuse disc bulge at L4-L5 without significant central or foraminal stenosis; and a central disc protrusion at L5-S1 with mild mass effect on the thecal sac effacing both S1 nerve roots. Bill Underwood, M.D., treated Mr. Wisenbaler on June 18, 2014. Dr. Underwood noted Mr. Wisenbaler presented with complaints of lower back pain that radiated into his left lower extremity, numbness and tingling in his left great toe and cramping in his left thigh. The pain was worse with standing. Dr. Underwood diagnosed left L5 radiculopathy with multilevel degenerative issues and multilevel small disc protrusions without significant impingement. He recommended physical therapy and a pain management evaluation.

         On August 11, 2014, Mr. Wisenbaler was seen by Russell Biundo, M.D., for complaints of low back pain radiating into his left leg. Dr. Biundo opined that Mr. Wisenbaler had an L3-L4 paracentral disc herniation that was compressing the L4 nerve root. He referred him back to Dr. Underwood to discuss surgical options and recommended continued physical therapy.

         On August 7, 2014, Dr. Thrush performed an independent medical evaluation. Mr. Wisenbaler reported continuing daily low back pain with radiation down the left leg into the thigh, calf, and foot. He denied any significant symptoms in between 2003 and the May 12, 2014, work injury. Dr. Thrush diagnosed lumbar sprain on top of pre-existing degenerative arthritis and degenerative disc disease and recommended continued physical therapy.

         Dr. Biundo saw Mr. Wisenbaler for chief complaints of low back pain and leg weakness on September 22, 2014. Dr. Biundo noted generalized left leg muscle atrophy. He also noted the July 9, 2014, MRI showed an L3-L4 herniated disc with nerve root impingement. He assessed left leg weakness, lumbar herniated disc at L3-L4, and pain to the left hip/pelvis. Dr. Biundo recommended follow-up with pain management, a pelvic MRI, and EMG/NCV testing. On December 1, 2014, Dr. Biundo diagnosed an L5 radiculopathy on the left based on the MRI findings. He recommended an L4-L5 nerve block and physical therapy.

         On March 17, 2015, Dr. Joseph Grady, M.D., performed an independent medical evaluation for the compensable condition of back strain/sprain. His assessment was multilevel lumbar spondylosis with reported left L3-L4 disc herniation with left L5 nerve root impingement on MRI and left L5 radiculopathy on EMG nerve conduction study and physical examination. Dr. Grady recommended Mr. Wisenbaler follow-up with the neurosurgeon and undergo a repeat MRI if requested to do so by the neurosurgeon. Dr. Grady noted Mr. Wisenbaler's lumbar sprain/strain had resolved. However, he had diffuse structural abnormalities with lumbar spondylosis throughout his lower back, which was pre-existing. But, some exacerbation of the conditions could have occurred due to the work injury. Dr. Grady opined that surgery would potentially benefit Mr. Wisenbaler's left leg symptoms.

         Dr. Underwood performed left-sided L3-L4 and L5-S1 microdiscectomies on June 9, 2015.The pre and post-operative diagnosis was left-sided L3-L4 herniated nucleus pulposus. On June 23, 2015, Mr. Wisenbaler was seen by Koshy Mathai, M.D., who noted his low back and left lower extremity pain had improved. Dr. Biundo diagnosed low back pain, left lumbosacral radicular syndrome, lumbar disc disease, lumbar stenosis, and lumbar facet arthropathy. An August 14, 2015, lumbar MRI revealed multilevel intervertebral disc disease and facet hypertrophic changes as well as post-surgical changes at L3-L4 and L5-S1. The disc herniation at L3-L4 decreased in size with decreased impingement on the left L4 nerve root within the lateral recess.

         Mr. Wisenbaler continued to treat with Dr. Biundo, who diagnosed status post herniated disc with significant improvement following the L3-L4, L5-S1 discectomy on August 17, 2015. On September 28, 2015, Dr. Biundo noted that during the prior week, Mr. Wisenbaler was bending forward to get clothes out of his dryer when he twisted his back and had pain and discomfort across the lower back with more pain and discomfort than ever. He had radiating pain in the left lower extremity and difficulty walking. Dr. Biundo noted an antalgic gait pattern that was inconsistent. He recommended physical therapy, the use of a TENS unit, and Neurontin. On October 28, 2015, Dr. Biundo noted the claimant had a herniated disc and they were waiting on recommendations from Dr. Underwood before moving forward.

         A November 18, 2015, lumbar MRI revealed enhancing scar tissue surrounding the S1 nerve root, decreased fluid in the left hemilaminectomy defect at L3-L4, and enhancement of the facet joint at L3-L4, which was present on the previous study as well. Dr. Underwood recommended a re-do of the L5-S1 microlumbar discectomy on December 7, 2015. ...

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