Appeal No. 2052218) (Claim No. 2016014788)
Charles Mullins, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Brooks Run South Mining, LLC, by Sean
Harter, its attorney, filed a timely response.
issues on appeal are the addition of displacement of lumbar
intervertebral disc without myelopathy to the claim,
additional medical benefits, and the closure of the claim for
temporary total disability benefits. The claims administrator
denied a referral to Rajesh Patel, M.D., on September 1,
2016. On October 14, 2016, the claims administrator closed
the claim for temporary total disability benefits, and on
November 21, 2016, it denied the addition of displacement of
lumbar intervertebral disc without myelopathy to the claim.
The Office of Judges affirmed the decisions in its August 29,
2017, Order. The Order was affirmed by the Board of Review on
March 2, 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
Mullins, a roof bolter, was injured in the course of his
employment on December 1, 2015, while lifting a belt
structure. A treatment note from Welch Community Hospital
that day indicates Mr. Mullins reported a work-related back
injury. On December 10, 2015, he returned with complaints of
worsening pain and pain shooting down both legs. He also
reported decreased sensation. The employee's and
physician's report of injury states that Mr. Mullins
injured his lower back and legs while lifting a belt
structure. The physician's section was completed at Welch
Community Hospital and the diagnosis was listed as a lumbar
sprain. On December 30, 2015, the claims administrator held
the claim compensable for sprain of ligaments of the lumbar
spine and temporary total disability benefits were granted
from December 2, 2015, through January 5, 2016.
Mullins has a long history of lumbar spine problems. On March
26, 2012, he sought treatment at Princeton Community Hospital
for lower back pain for the previous few days. He stated that
he was sitting down and when he stood up, his back started
hurting and the pain radiated into his right leg. It was
noted that he had back problems four to five years prior. A
lumbosacral MRI taken on April 4, 2012, showed a benign tumor
at L5 and mild disc osteophyte formation with slight
indentation of the thecal sac at L5-S1.
July 24, 2014, treatment note Robert Kropac, M.D., noted that
Mr. Mullins was seen for lower back pain. He reported a
history of lower back pain for all of his life. The pain was
off and on but had increased over the past year with no
specific injury. He also reported pain intermittently in his
right and left legs. Dr. Kropac diagnosed lumbosacral
musculoligamentous strain and prescribed medication. Mr.
Mullins returned to Dr. Kropac on April 6, 2015, and stated
that his back pain had been constant and radiating into this
right leg and mid back. Dr. Kropac recommended an MRI.
March 28, 2015, Mr. Mullins returned to Princeton Community
Hospital with worsening back pain with radiation into the
right leg. He denied any injury and was given medication and
injections. An MRI was performed on April 22, 2015, which
showed a small disc protrusion at L5-S1 and mild L4-5
degenerative disc disease and facet arthropathy. Mr. Mullins
returned to Dr. Kropac on May 5, 2015, and reported that he
still had constant lower back pain and that his right leg
pain had increased. Dr. Kropac diagnosed discogenic lower
back disease with a radicular component.
Mullins sought treatment from David Shamblin, M.D., following
the compensable injury at issue. On December 16, 2015, Dr.
Shamblin noted that Mr. Mullins was seeking treatment for a
work-related back injury after lifting a belt structure. His
pain was mostly in his right hip and leg and he had
difficulty walking as well as some urinary incontinence. Mr.
Mullins reported that he was diagnosed with scoliosis as a
child but had no treatment for his back until the compensable
injury. Dr. Shamblin diagnosed herniated L5-S1 disc. Mr.
Mullins was to remain off of work until an MRI could be
performed. On January 5, 2016, Mr. Mullins reported no
improvement in his pain, and he was walking with a
right-sided limp. On January 19, 2016, Dr. Shamblin noted
that the MRI showed a central disc protrusion. Mr. Mullins
started physical therapy and was to remain off of work. By
February 18, 2016, it was noted that physical therapy had
improved the leg pain but the back pain remained the same.
Mr. Mullins was to continue therapy and remain off of work.
Mr. Mullins returned to Dr. Shamblin's office on March
31, 2016, and it was noted that he had been attending
physical therapy but had seen no improvement. Dr. Shamblin
opined that he needed to be seen by a spinal surgeon as he
had developed urinary urgency and loss of bladder control. He
was to remain off of work. On July 5, 2016, Mr. Mullins's
condition remained the same, and Dr. Shamblin opined that a
consultation with a neurosurgeon was still necessary.
August 3, 2016, Mr. Mullins's symptoms had worsened, and
on August 31, 2016, Dr. Shamblin reiterated that a
consultation with Dr. Patel, neurosurgeon, remained Mr.
Mullins's best option for treatment and stated that he
should undergo surgery if Dr. Patel recommended it. Mr.
Mullins remained unable to return to work. He returned to Dr.
Shamblin on September 28, 2016, and it was noted that his
condition had not improved since his first treatment. It was
also noted that he had undergone an independent medical
evaluation and was found to be at maximum medical improvement
for the compensable injury. The evaluation also found that
his current condition was related to a previous injury,
though Dr. Shamblin found that he had no leg pain with his
prior back pain. He was not aware of the 2012 MRI. On
November 2, 2016, it was noted that Mr. Mullins's
symptoms had worsened and he now had increased tingling and
numbness in the right leg. He remained disabled and unable to
return to work. Dr. Shamblin opined that since he had failed
conservative treatment, a visit with a spinal surgeon should
be considered. By November 30, 2016, Mr. Mullins's limp
had increased and he was now unable to sit up right. On
February 13, 2017, Dr. Shamblin opined that Mr. Mullins was
still temporarily and totally disabled and that he had
displacement of lumbar intervertebral disc. Dr. Shamblin
believed that though he may have had a bulging disc prior to
the compensable injury, the injury at issue caused the
herniation of the disc. Dr. Shamblin opined that Mr. Mullins
was unable to work in his current condition and a referral to
Dr. Patel was medically necessary and reasonably related to
the compensable injury.
lumbar MRI was performed on January 13, 2016, and showed a
posterior disc protrusion at L5-S1. On March 21, 2016, an
EMG/NCS showed abnormal activity in the right S1 innervated
muscles. Barry Vaught, M.D., evaluated the study and found
that it was abnormal. He determined there was
electrophysiological evidence of S1 radiculopathy on the
right. There was no evidence of neuropathy on the left.
Mullins was seen by Dr. Patel on April 13, 2016. Dr. Patel
diagnosed lumbar sprain, L5-S1 disc bulge, right S1
radiculopathy, and lumbago. He opined that conservative
treatment would be the best approach. He advised Mr. Mullins
to stay as active as possible and to avoid bed rest. He also
recommended referral to a pain clinic for epidural steroid
injections. Dr. Patel opined that based on the MRI, Mr.
Mullins's loss of bladder control could not be explained
as there was no evidence of significant cauda equine
compression. Dr. Patel did find some mild nerve root
compression but stated that it should not cause loss of
bladder control. He determined that a consultation with a
urologist would be reasonable. Dr. Patel recommended Mr.
Mullins exhaust all conservative treatment available before
Thymius, M.D., treated Mr. Mullins on June 7, 2016, and
diagnosed lumbosacral intervertebral disc displacement and
radiculopathy. Dr. Thymius noted that Mr. Mullins had failed
conservative treatment. He found that since the examination
findings correlated with the MRI findings, epidural steroid
injections for treatment and diagnostic purposes were
necessary. Mr. Mullins had the injections on June 30, 2016.
On August 11, 2016, he followed up with Dr. Thymius's
physician's assistant, Mr. Lilly. Mr. Mullins reported no
pain relief from the injections and severe pain for the first
three days after the injections. No further injections were
recommended and Mr. Mullins was referred back to Dr. Patel.
Bailey, M.D., performed an independent medical evaluation on
August 17, 2016, in which she diagnosed chronic lower back
pain with right radiculopathy. She noted that Mr. Mullins had
a long history of preexisting lumbar symptoms and had
received treatment from Dr. Kropac in the past. She opined
that the record reflects that he had experienced lower back
and right leg symptoms since at least April 4, 2014, and that
his complaints preexisted and had remained unchanged since
the compensable injury. Dr. Bailey found that Mr. Mullins had
reached maximum medical improvement for the compensable
injury and no further treatment of any kind was necessary.
She stated that he has no work restrictions due to the
compensable injury but would likely be unable to return to
his previous job due to noncompensable, preexisting
conditions. She assessed 7% permanent partial disability ...