Appeal No. 2052361) (Claim No. 2017009053)
Murray American Energy, by Aimee M. Stern and Denise D.
Pentino, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Timothy
Toothman, by J. Thomas Greene Jr., his attorney, filed a
issue on appeal is compensability. The claims administrator
rejected the claim on February 8, 2017. The Office of Judges
reversed the decision in its December 1, 2017, Order and held
the claim compensable for cervical sprain/strain. The Order
was affirmed by the Board of Review on July 2, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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 that the Board of Review's decision is
based upon material mischaracterizations and misstatements of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Toothman, a coal miner, alleges that he was injured in the
course of his employment on May 27, 2016, while lifting a
block. A May 31, 2016, treatment note by J. David Lynch,
M.D., indicates Mr. Toothman was seen for a new injury that
occurred when he lifted a cement block and felt a pop in his
neck. He reported pain in his neck and right shoulder. Dr.
Lynch prescribed physical therapy and medication. On June 14,
2016, Mr. Toothman returned with continued neck pain and had
not started physical therapy. On July 7, 2016, it was noted
that he had started physical therapy but was still
experiencing neck pain that radiated into his right shoulder.
He also had some numbness in his hands.
Employee's and Physician's Report of Injury indicates
Mr. Toothman sustained a cervical strain in the course of his
employment. Dr. Lynch completed the physician's section
on September 12, 2016. His treatment note that day indicates
Mr. Toothman continued to do physical therapy but still had
neck pain. He was still working. Dr. Lynch diagnosed cervical
strain. On October 3, 2016, he reported that physical therapy
had stopped. He was having constant neck pain into the right
shoulder. On October 14, 2016, Mr. Toothman reported that he
now had occasional numbness in both hands along with neck
Toothman has a history of cervical spine issues. A May 20,
2012, Employee's and Physician's Report of Injury
indicates Mr. Toothman injured his neck and back when he
struck his head while dragging a hose. The diagnosis was
listed as cervical strain, and the claim number was
2012037697. The claim was held compensable for neck sprain on
June 21, 2012. A cervical MRI was performed on September 12,
2012, and showed mild degenerative changes with a disc bulge
at C3-4 along with mild bilateral foraminal narrowing.
Toothman saw Dr. Lynch for the 2012 injury. On December 18,
2012, Mr. Toothman reported daily radiating neck pain. Dr.
Lynch diagnosed cervical strain and recommended physical
therapy. He returned on February 24, 2013, and reported that
his neck was stiff. He was again diagnosed with cervical
strain and was to continue physical therapy. An independent
medical evaluation was performed on February 28, 2013, by
Joseph Grady, M.D. Dr. Grady found that Mr. Toothman had
reached maximum medical improvement for his compensable neck
sprain and assessed 5% impairment.
Toothman saw Dr. Lynch for his cervical sprain for several
years. In March of 2013, Dr. Lynch noted that Mr. Toothman
reported daily neck pain. He stated that physical therapy was
helping, and he was released to return to regular duty work.
In March of 2014, Mr. Toothman reported daily pain and
stiffness in his neck along with occasional bilateral hand
numbness. In April of 2015, he reported that he was doing
worse and experiencing daily neck pain and stiffness,
occasional bilateral hand numbness, and left arm tingling. It
was recommended he restart physical therapy. On February 8,
2016, Mr. Toothman again reported daily neck pain and
stiffness with some hand numbness. One month later, he
returned with the same complaints. A cervical MRI showed no
evidence of significant spinal stenosis on February 23, 2017.
November 14, 2016, Dr. Lynch requested that herniated disc of
the cervical spine be added as a compensable condition in
claim number 2012037697. Based on that request, the claims
administrator added sprain of joints and ligaments of other
parts of the neck to that same claim on April 12, 2017. On
February 8, 2017, the claims administrator rejected the claim
at issue, stating that it was a reoccurrence of the prior
claim numbered 2012037697.
Toothman testified in a deposition on August 24, 2017, that
on May 20, 2012, he was at work dragging something that
caught on an overcast. This resulted in him hitting his head
on the top and caused injuries to his neck and back. He
underwent physical therapy and used medications. Mr. Toothman
asserted that on May 27, 2016, he was lifting a block and
felt a pop in his neck and that this was a new injury.
September 6, 2017, record review, Ronald Fadel, M.D., was
asked to determine if Mr. Toothman's cervical complaints
were the result of a new injury or if they were a
reoccurrence of the 2012 compensable injury. Dr. Fadel opined
that the May 27, 2016, incident was an exacerbation of Mr.
Toothman's noncompensable, age-related condition. He
stated that the cervical condition was permanent and would
likely cause symptoms for the remainder of Mr. Toothman's
life. Dr. Fadel noted that there was no objective evidence of
permanent changes or an acute injury to the cervical spine
following the May 27, 2016, incident.
Office of Judges reversed the claims administrator's
rejection of the claim and held the claim compensable for
cervical sprain/strain on a no lost time basis in its
December 1, 2017, Order. It noted that Mr. Toothman suffered
from neck complaints and a neck injury prior to the May 27,
2016, injury at issue. It found that he had mild degenerative
changes. The Office of Judges determined that Mr. Toothman
sustained a soft tissue cervical sprain on May 20, 2012. It
noted that he reached maximum medical improvement as found by
Dr. Grady on February 28, 2013. The Office of Judges noted
that per West Virginia Code of State Rules § 85-20, a
cervical sprain should be resolved within eight weeks;
however, Mr. Toothamn had cervical complaints from the May of
2012 injury to the present. It looked to Dr. Fadel's
report in which he found that Mr. Toothman's issues were
the result of his underlying degenerative changes. The Office
of Judges found, however, that the most recent MRI showed
mild degenerative changes and does not support Dr.
Fadel's conclusions. Dr. Lynch examined Mr. Toothman
several times between the May of 2012 injury and the present,
and the Office of Judges therefore found his opinion to be
more persuasive than that of Dr. Fadel. Dr. Lynch opined that
Mr. Toothman sustained a new injury on May 27, 2016, in the
form of a cervical sprain. His opinion was found to be
supported by the most recent diagnostic testing as well as
Mr. Toothman's testimony. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on July 2, 2018.
review, we find that the Board of Review's decision is
based on material misstatements and mischaracterizations of
the evidentiary record. Dr. Lynch stated in his treatment
notes that Mr. Toothman sustained a new injury on May 27,
2016, and then completed a diagnosis update in case number
2012037697 requesting that cervical strain be added to the
claim. Further, Dr. Lynch's findings of Mr.
Toothman's condition remained essentially the same both
before and after the May 27, 2016, incident. Lastly, claim
number 2012037697, was held compensable for sprain of ...