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Murray American Energy, Inc. v. Gump

Supreme Court of West Virginia

May 29, 2018

MURRAY AMERICAN ENERGY, INC., Employer Below, Petitioner
CLARK GUMP, Claimant Below, Respondent

          BOR Appeal No. 2052109 (Claim No. 2016021536)


         Petitioner, Murray American Energy, Inc., Aimee Stern, its attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Clark Gump, by M. Jane Glauser, his attorney, filed a timely response.

         The issues on appeal are the compensability of an additional diagnosis, medical treatment, and payment of temporary total disability benefits. On November 7, 2016, the claims administrator held the claim compensable for strain of muscle, fascia, and tendon of the lower back and denied lesion of lateral popliteal nerve, left lower limb, as a compensable condition. On December 12, 2016, the claims administrator held the claim compensable for strain of muscle, fascia, and tendon of lower back and denied acute peroneal nerve palsy. The claims administrator also denied authorization for evaluation and treatment with Ronald Hargraves, M.D., in a separate decision on December 12, 2016. On September 13, 2016, the claims administrator closed the claim for temporary total disability benefits. The Office of Judges affirmed the claims administrator's November 7, 2016, Order in its July 25, 2017, Order. It also reversed the September 13, 2016, and both December 12, 2016, decisions. The Office of Judges' Order was affirmed by the Board of Review on February 1, 2018. 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. Gump was carrying a two hundred pound beam on February 23, 2016, when he felt pain in his back. When he sought treatment in the emergency room at Wheeling Hospital for complaints of back pain that same day, Mr. Gump reported intermittent paresthesias of the bottoms of both feet and a history of back pain. Lumbar spine x-rays were normal. Mr. Gump was diagnosed with acute lumbar strain. On February 26, 2016, Mr. Gump was seen by Ross Tennant, FNP, with Corporate Health. Mr. Gump provided a history of a lumbar fracture eighteen years prior, which had fully healed, as well as chronic low back pain, which he managed with medication. Mr. Gump reported pain and muscle spasms in his low back with pain radiating down both legs. On examination, Mr. Gump's lumbar spine was tender to palpation and his range of motion was significantly reduced. Mr. Tennant diagnosed lumbar strain and requested an MRI of the lumbar spine.

         The lumbar MRI was performed on March 3, 2016. It showed mild degenerative disc disease of the lower lumbar spine, no spinal stenosis, and some mild bilateral foraminal narrowing at L3-L4 and L4-L5 without evidence of nerve root contact. On March 4, 2016, Mr. Gump reported a slight improvement in the pain and discomfort in his back when he was seen for follow-up by Mr. Tennant. Mr. Gump was still experiencing pain radiating into his bilateral lower extremities as well as numbness and tingling to his feet. Mr. Tennant prescribed a Medrol Dosepak and instructed Mr. Gump to continue with physical therapy. The claim was accepted as compensable for strain of muscle, fascia, and tendon of the lower back on March 10, 2016.

         Mr. Gump had a significant history of lumbar spine problems dating back to July of 1998, when Sam Vukelich, M.D., examined Mr. Gump for constant low back pain, right leg pain, and right leg turning out. Mr. Gump reported that his legs gave out on him at times. Dr. Vukelich recommended an MRI or EMG in order to see if Mr. Gump needed surgery. The EMG was completed by John Tellers, M.D., on September 17, 1998. It showed normal peroneal and posterior tibial nerve conduction and no evidence of an acute or chronic right lumbosacral motor radiculopathy, focal motor neuropathy, or myopathy.

         James Valuska, M.D., performed an independent medical evaluation for a chief complaint of low back, right leg, and right wrist pain on November 30, 2000. He noted Mr. Gump was injured on June 8, 1997, when he was moving a modular home and the jack slipped, pinning Mr. Gump between the home and the foundation. Mr. Gump was diagnosed with transverse fractures of the first, second and third transverse processes. Mr. Gump reported pain radiating to his right buttock and to the posterior part of his right leg within ten days of the injury. A September 28, 1998, lumbar spine MRI showed slight degenerative changes. A second MRI showed an L4-L5 intervertebral disc bulge and a small central protrusion of the L5-S1 disc. Mr. Gump reported pain into his right buttock with tingling into the right leg and thigh. Dr. Valuska diagnosed healed fractures of the first, second, and third lumbar transverse processes and disc displacement of L1 without signs of radiculopathy.

         Mr. Gump was treated by Michael Wayt, M.D., for chronic low back pain from July of 2008 through June of 2015. During that time, Dr. Wayt treated Mr. Gump two to three times per year and usually treated the chronic low back pain with injections. In December of 2008, lumbar spine x-rays showed mild degenerative changes with disc space narrowing at L4-L5 and L5-S1. A January 6, 2009, MRI showed a broad based central disc protrusion. On February 4, 2009, Dr. Wayt diagnosed chronic low back pain and herniated disc at L4-L5. In September of 2013, Mr. Gump noted radicular leg pain. On March 18, 2014, Mr. Gump had numbness and radicular leg pain. In June of 2014, Dr. Wayt gave Mr. Gump an injection for a flare-up of low back pain. On June 15, 2015, Mr. Gump complained of low back pain which was aggravated by repetitive lifting at work. He had pain with palpation over the paraspinal muscles. Dr. Wayt prescribed Tramadol and Naproxen and gave Mr. Gump an injection.

         After the February 23, 2016, work injury, Mr. Gump was treated by Mr. Tennant. On March 11, 2016, Mr. Gump reported that physical therapy helped to improve the pain and discomfort in his back. Mr. Tennant noted the lumbar spine was slightly tender to palpation and the hypertonicity to his spinal erector muscles was improving. Mr. Tennant diagnosed lumbar sprain and mild degenerative changes of the lumbar spine. He advised Mr. Gump to continue physical therapy. On March 25, 2016, Mr. Gump reported continued improvement and denied radicular complaints. He was not tender to palpation and the hypertonicity continued to improve. On April 1, 2016, Mr. Gump reported he had completed physical therapy and that the pain and discomfort in his back had significantly improved. Mr. Gump was nontender to palpation and the hypertonicity in his spinal erector muscles had resolved. Mr. Tennant's diagnoses remained lumbar strain and mild degenerative changes of the lumbar spine. Mr. Gump was released to return to regular duty work as of April 4, 2016.

         Mr. Gump returned to see Mr. Tennant on May 19, 2016. He reported that he had returned to work on April 4, 2016, and had developed pain in his low back. He was having trouble bending over and lifting heavy objects. He also had intermittent pain radiating into his left lower leg. He denied any paresthesias. On examination, Mr. Gump was tender to palpation with hypertonicity to the spinal erector muscles. Mr. Tennant opined that he was experiencing a flare-up in his symptoms and recommended an additional six weeks of physical therapy. On May 27, 2016, Mr. Gump reported the muscle spasms in his back continued to get worse. Mr. Gump remained tender to palpation and there was significant hypertonicity noted in the spinal erector muscles. Mr. Tennant recommended continued physical therapy and an EMG of the left lower extremity.

         A July 28, 2016, EMG study of the left leg suggested acute and chronic changes in the peroneal nerve, which was L4-L5 root innervention, a chronic process in the L5-S1 nerve root muscle. Mr. Gump had neuropathy involving the left peroneal nerve with minimal findings in the L5 nerve root. It was noted that Mr. Gump had an L5-S1 fusion with foraminal disease and desiccated disc most probably affecting the older back trauma since he has been in a job where he has frequent lifting. It was recommended that he consider physical therapy to work on the peroneal nerve and to continue working with his paraspinal muscles.

         Mr. Gump was discharged from physical therapy on August 2, 2016, and followed up with Mr. Tennant on August 3, 2016. Mr. Tennant noted that Mr. Gump had completed physical therapy but reported no improvement in his symptoms. Mr. Tennant noted the EMG showed Mr. Gump had neuropathy involving the left peroneal nerve. However, from a musculoskeletal standpoint, Mr. Gump's symptoms had improved and he had reached maximum medical improvement from his acute back injury. He noted Mr. Gump would need to seek treatment from his primary care physician for the peripheral injury involving the peroneal nerves.

         The claims administrator suspended the claim for temporary total disability benefits on August 5, 2016, as Mr. Gump had been released to return to work. On September 2, 2016, Dr. Wayt wrote a note stating Mr. Gump should remain ...

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