Appeal No. 2052109 (Claim No. 2016021536)
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...