Appeal No. 2052121) (Claim No. 2009061183)
Betty Booth, by Robert L. Stultz, her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. West Virginia United Health Systems, by Steven K.
Wellman, its attorney, filed a timely response.
issue on appeal is whether Ms. Booth is entitled a reopening
of her case for additional permanent partial disability
consideration. The claims administrator denied a reopening on
March 10, 2017. The Office of Judges reversed the decision in
its July 27, 2017, Order and reopened the claim. The Order
was reversed by the Board of Review on December 1, 2017. 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
Booth, a registered nurse, was injured in the course of her
employment on September 4, 2008, when she bent over to start
an intravenous line and felt pain in her lower back. Lumbar
x-rays taken on September 9, 2008, showed mild endplate
degenerative osteophytes from L3 to L5. There were no
fractures noted and facet joints and disc space heights were
normal. In a treatment note that day, Dr. Bowers stated that
Ms. Booth presented with lower back pain that went down the
left leg. He assessed lumbar sprain. An MRI taken on
September 21, 2008, showed a moderate sized L2-3 herniated
disc impinging on the L2 nerve root. The claim was held
compensable for displacement of thoracic or lumbar
intervertebral disc without myelopathy on October 5, 2008.
treatment note dated January 7, 2010, Vincent Miele, M.D.,
stated that Ms. Booth's repeat MRI showed excellent
improvement in the L2-3 disc herniation. A lumbar MRI taken
on September 30, 2011, revealed facet arthropathy at multiple
levels with disc bulging and osteophyte formation. There was
no evidence of focal disc herniation but there was bilateral
foraminal stenosis at L2-4 and a mild disc bulge at L5-S1.
Jin, M.D., performed an independent medical evaluation of Ms.
Booth on October 20, 2011. Dr. Jin diagnosed history of
lumbar sprain/strain, degenerative lumbar disc disease as
evidenced on MRI, and probable left lower extremity
radiculopathy. Dr. Jin noted that there had been no trauma to
the spine, as Ms. Booth was injured by merely leaning over.
She opined that the degenerative disc disease was not caused
by the compensable injury but was likely a preexisting
condition. Degeneration is slow and can take years to show on
x-rays or MRIs. Dr. Jin opined that a regular motion, such as
leaning over, will not cause or accelerate degeneration, and
the MRI findings are consistent with degenerative changes
rather than trauma. Dr. Jin noted that Ms. Booth had a disc
herniation at L2-3 which had healed, as seen on subsequent
MRIs. She further noted that Ms. Booth's symptoms did not
improve after the L2-3 disc healed, indicating her symptoms
are the result of a different condition. Dr. Jin found that
there should be no further treatment for the lumbar
sprain/strain. Ms. Booth had reached maximum medical
improvement and Dr. Jin assessed 11% impairment but
apportioned 6% to preexisting conditions and only 5% to the
compensable injury. Ms. Booth was granted a 5% permanent
partial disability award on December 5, 2011.
June 26, 2013, record review, Dr. Jin opined that the
degenerative changes seen at L5-S1 are not the result of the
compensable injury. There was no evidence of trauma to the
spine. She noted that Dr. Bowers testified in a deposition
that the preexisting degenerative changes seen on the first
MRI were preexisting changes and it was impossible to
conclude that the compensable injury could have caused
degeneration.Dr. Jin concluded that it is
impossible to conclude that the injury aggravated the
underlying degenerative disease given than there was no
October 13, 2016, Karl Boone, D.C., performed an independent
medical evaluation in which he noted a diagnosis of
displacement of lumbar disc without myelopathy. He opined
that Ms. Booth had 8% impairment under Table 75 of the
American Medical Association's Guides to the Evaluation
of Permanent Impairment (4th ed. 1993), 7% for
range of motion loss, and 2% for sensory deficits. The
combined total of 16% was reduced per West Virginia Code of
State Rules § 85-20-C (2006). On October 24, 2016, Ms.
Booth requested that her claim be reopened and submitted Dr.
Boone's report in support.
performed an independent medical evaluation on February 20,
2017, in which she found that Ms. Booth's chronic lower
back pain is the result of degenerative discs. There was
insufficient evidence to support an injury to the spine. Dr.
Jin concluded that Ms. Booth's symptoms are due to the
natural progression of her preexisting disease. Ms. Booth had
reached maximum medical improvement for her lumbar sprain.
Dr. Jin assessed 20% impairment and found that 5% was due to
the compensable injury.
claims administrator denied a reopening of the claim for
permanent partial disability consideration on March 10, 2017.
The Office of Judges reversed the decision in its July 27,
2017, Order. It found that the threshold for reopening is
low. A claimant merely needs to show that evidence that would
tend to justify, but not compel, the inference that the
injury has progressed or suffered an aggravation. The Office
of Judges concluded that Ms. Booth met this burden with the
report of Dr. Boone who found 13% impairment. The Board of
Review reversed the Office of Judges' Order on December
1, 2017. It found that Ms. Booth requested that disc
herniation and nerve impingement be added to the claim and
the claims administrator denied the request. That decision
was affirmed by the Office of Judges, Board of Review, and
this Court. The Board of Review found in this case that the
evidence of record, including Ms. Booth's testimony, does
not disclose facts that tend to show that a progression or
aggravation of the compensable injury has occurred. Dr.
Boone's impairment rating was found to include a
non-compensable condition, and he failed to apportion between
the compensable and noncompensable conditions.
review, we agree with the reasoning and conclusions of the
Board of Review. Ms. Booth suffered a lumbar sprain/strain
and a lumbar disc herniation as a result of her compensable
injury. The disc herniation healed, as seen on subsequent
MRIs. Dr. Jin took this into consideration when she performed
her two independent medical evaluations. Dr. Boone's
evaluation showed no evidence that the compensable injury had
progressed or suffered an aggravation. He also failed to
distinguish his findings between compensable and
noncompensable conditions. Ms. Booth therefore failed to meet
her burden of proof to show a progression or aggravation of
her compensable injury that would justify reopening her
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the ...