MARY E. WILLS, Claimant Below, Petitioner
PRINCETON COMMUNITY HOSPITAL ASSOCIATION, Employer Below, Respondent
Appeal No. 2052551, (Claim No. 2017008750)
Mary E. Wills, by Reginald D. Henry, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Princeton Community Hospital Association, by
Steven K. Wellman, its attorney, filed a timely response.
issues on appeal are an additional compensable condition and
temporary total disability benefits. The claims administrator
closed the claim for temporary total disability benefits on
March 4, 2017. On March 28, 2017, it denied the addition of
low back strain of the muscle fascia and tendon to the claim.
The Office of Judges affirmed the decisions in its January
25, 2018, Order. The Order was affirmed by the Board of
Review on July 20, 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 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
Wills, a surgical nurse, was injured in the course of her
employment on September 29, 2016, when she slipped on a wet
floor and fell. Treatment notes from Princeton Community
Hospital emergency room that day indicate Ms. Wills reported
pain in her right shoulder, elbow, and hip after falling on a
wet floor at work. X-rays of the right shoulder, right
pelvis, right hip, and right elbow showed no evidence to
suggest acute traumatic injury. X-rays of the lumbar spine
showed degenerative disc disease at L5-S1 and facet joint
arthropathy. Ms. Wills was given a physical exam during which
it was noted that her back was normal with no tenderness. She
was diagnosed with right shoulder contusion and taken off of
work until October 3, 2016. Ms. Wills completed an
Employees' and Physicians' Report of Injury that day
as well, indicating she injured her right elbow, shoulder,
and hip when she slipped and fell on a wet floor. Rebecca
Green, APRN, FNP, BC, completed the physician's section
and listed the diagnoses as contusions of the right shoulder,
elbow, and hip. The claim was held compensable for strained
muscle tendon of the right shoulder rotator cuff, right
shoulder contusion, right elbow contusion, and right hip
October 6, 2016, treatment note by Frederick Morgan, D.O.,
indicates Ms. Wills reported right shoulder pain since her
compensable fall. Dr. Morgan diagnosed right shoulder pain
with rotator cuff weakness. He administered an injection and
ordered physical therapy and an MRI. On October 31, 2016, Ms.
Wills returned with continued pain. Dr. Morgan noted that an
MRI was performed and showed a rotator cuff tear. He
recommended surgery. Ms. Wills returned on December 20, 2016,
and Dr. Morgan noted that she underwent rotator cuff surgery
on December 6, 2016. She reported some shoulder pain and new
complaints of low back and upper buttock pain. Dr. Morgan
recommended conservative treatment for the lower back.
Wills underwent physical therapy in January of 2017.
Treatment notes by Gregory Southers, PA-C, indicate her right
shoulder was doing well and that she could return to work on
January 19, 2017, with accommodations restricting the use of
her right arm. Mr. Southers stated that he does not treat
back pain and recommended she be referred for evaluation and
treatment of her lower back symptoms. Ms. Wills saw Dr.
Morgan on January 23, 2017, and he noted that she was doing
well. He stated that he agreed with Mr. Southers's
opinion that Ms. Wills could return to work with
accommodations restricting the use of her right arm. He
released her to return as of January 24, 2017, with the
restriction of no lifting with her right arm. On January 24,
2017, Ms. Wills completed a Transitional Duty Agreement with
her department manager stating that with her restrictions,
the position available for her was case management assistant.
Temporary total disability benefits were suspended on January
27, 2017, as Ms. Wills had been released to return to work.
Thaxton, M.D., performed a physician review on January 30,
2017, in which she recommended that right rotator cuff
syndrome be added to the claim. She stated that the addition
of the condition would be inconsequential since the claim was
already compensable for rotator cuff sprain. Dr. Thaxton
recommended denying the addition of low back pain to the
claim. She found that there was no initial low back injury
and Ms. Wills did not report lower back pain on the report of
injury or to a physician when she initially sought treatment.
Though the January 18, 2017, physical therapy notes stated
that the lower back pain had been ongoing since the
compensable injury, Dr. Thaxton found that the medical record
failed to support this assertion.
Wills returned to Dr. Morgan on February 23, 2017. He noted
that she was doing very well post rotator cuff surgery. He
released her to return to normal activity as tolerated and
released her to return to work with no restrictions. The
claims administrator closed the claim for temporary total
disability benefits on March 4, 2017. A VocWorks Closure
Report dated March 14, 2017, indicates Ms. Wills was released
to return to full duty work. On March 28, 2017, the claims
administrator denied the addition of low back strain of the
muscle fascia and tendon to the claim.
Soulsby, M.D., performed an independent medical evaluation on
April 13, 2017, in which he assessed post-surgical repair of
the right shoulder rotator cuff tear, healed right elbow
contusion, healed right hip contusion, lumbar sprain/strain,
and preexisting degenerative disc disease at L5-S1. Dr.
Soulsby noted that Ms. Wills sustained an injury to her lower
back on March 16, 2016, while restraining a patient. He found
that the incident likely aggravated her degenerative disc
disease. The aggravation did not heal and was still a problem
at the time of her September 29, 2016, compensable injury.
Dr. Soulsby opined that the compensable fall caused an
aggravation of the preexisting condition and that Ms. Wills
may have persistent back pain related to the degenerative
disc disease; however, it is not a compensable condition. Dr.
Soulsby opined that Ms. Wills had reached maximum medical
improvement for the right shoulder and elbow but not for the
right hip and lower back. He assessed 0% elbow impairment and
5% right shoulder impairment.
lumbar MRI was performed on May 10, 2017, and showed
degenerative changes and bulging discs from T12-S1. There was
facet joint arthropathy from L3-S1. Ms. Wills sought
treatment from Princeton Community Hospital Emergency
Department on May 11, 2017, for lower back pain that had
worsened since her MRI the day before. She reported that the
pain radiated into her right buttock and thigh and that she
also had tingling with the pain. She was diagnosed with acute
on chronic right lumbosacral strain, multilevel disc bulges
as seen on MRI, and acute right sciatic radiculopathy.
Wills testified in a deposition on May 17, 2017, that she
returned to work on modified duty in January of 2017 but only
worked two days due to lower back pain. She has not returned
to work since that time. She asserted that she reported back
pain to Dr. Morgan in October of 2016 and was told that he
does not treat backs. She stated that prior to the September
29, 2016, injury, she had no back injury. In March of 2016,
she fought with a combative patient and injured her back but
it was all on the left side. She wrote an incident report but
did not complete a claim application. She also stated that
she told her boss the following month that she was still
having problems with her back but thought that it was a
muscular issue. She missed no work and received no treatment
for the incident. Ms. Wills asserted that she reported back
pain when she initially sought treatment at the emergency
room on September 29, 2016. On May 23, 2017, Dr. Morgan wrote
a letter in which he opined that Ms. Wills's lower back
muscle fascia and tendon strain should be added as a
compensable condition to the claim.
Office of Judges affirmed the claims administrator's
decisions denying the addition of low back strain of the
muscle fascia and tendon to the claim and closing the claim
for temporary total disability benefits in its January 25,
2018, Order. It found that neither the report of injury nor
the emergency room treatment notes mention the lower back.
Medical records do not show any indication of back issues
until December 20, 2016, when Ms. Wills told Dr. Morgan that
she had back pain. The Office of Judges concluded that though
Dr. Morgan wrote a letter opining that the low back should be
included in the claim, he failed to provide an explanation
for his opinion. The Office of Judges further found that Dr.
Soulsby opined that Ms. Wills had preexisting degenerative
disc disease which was aggravated when she injured her back
on March 16, 2016, while restraining a patient. It was his
opinion that the aggravation did not completely heal and was
a persistent problem at the time of the compensable September
29, 2016, injury. Therefore, in his opinion, the September
29, 2016, injury caused an aggravation of a preexisting
condition. The Office of Judges concluded that under Gill
v. City of Charleston 236 W.Va. 737, 783 S.E.2d 857
(2016), an aggravation of a preexisting condition is not
compensable unless it causes a discrete new injury. Based on
the evidence at hand, the Office of Judges held that Ms.
Wills's lower back problems are not compensable.
regard to temporary total disability benefits, the Office of
Judges noted that they are to cease when a claimant returns
to work, is released to return to work, or had reached
maximum medical improvement. Ms. Wills was released to return
to modified duty on January 18, 2017, by Mr. Southers. Dr.
Morgan concurred on January 23, 2017, and stated she could
return to work as long as she refrained from using her right
arm. He signed a return to work slip the following day. Ms.
Wills and her manager also signed a Transitional Duty
Agreement that day. Lastly, Dr. Soulsby found that Ms. Wills
reached maximum medical ...