Appeal No. 2052530) (Claim No. 2017008629)
Murray American Energy, Inc., by Denise D. Pentino and Aimee
M. Stern, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Steven
Eye, by Robert L. Stultz, his attorney, filed a timely
issues on appeal are medical benefits and temporary total
disability benefits. The claims administrator denied a
referral to a pain management clinic on June 23, 2017. On
August 2, 2017, it closed the claim for temporary total
disability benefits. The Office of Judges reversed the
decisions in its January 31, 2018, Order, granted a referral
to a pain clinic, and granted temporary total disability
benefits from July 14, 2017, to September 14, 2017. The Order
was affirmed by the Board of Review on July 27, 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
Eye, a coal miner, injured his lower back in the course of
his employment on September 22, 2016. The Employees' and
Physicians' Report of Injury was completed on October 3,
2016, and indicates Mr. Eye injured his right lower back
while lifting a side cover on a bulldozer. He was treated at
United Hospital Center and diagnosed with a low back strain.
He reported that he had a sudden onset of sharp pain and had
experienced similar symptoms in the past. Lumbar x-rays
showed mild multilevel degenerative endplate osteophyte
formations. There were mild degenerative changes in the lower
lumbar region. He was diagnosed with lower back pain.
sought treatment from Russell Biundo, M.D., on October 10,
2016, for low back pain that radiated into the left leg,
right hip pain, and left leg numbness. He was referred for an
MRI and x-rays of the hips and pelvis. The MRI was completed
on November 2, 2016, and showed multilevel degenerative
changes and disc space disease, a small disc herniation at
T12-L1, and a large herniation with a free fragment at L3-4.
The claim was held compensable for strain of muscle, fascia,
and tendon of the lower back. Temporary total disability
benefits were granted from October 1, 2016, through October
underwent a lumbar epidural steroid injection for a herniated
lumbar disc and lumbar spinal stenosis on November 29, 2016.
He returned to Dr. Biundo on January 24, 2017, and reported
some symptom relief from the epidural steroid injections. He
was referred to physical therapy. David Soulsby, M.D.,
performed an independent medical evaluation on February 21,
2017, in which he diagnosed a herniated L3-4 disc. He found
that Mr. Eye had not yet reached maximum medical improvement
and opined that a lumbar laminectomy is the reasonable next
March 10, 2017, Dr. Biundo noted that Mr. Eye reported
constant pain and some right leg weakness. He referred Mr.
Eye for another MRI and to a neurosurgeon. Bill Underwood,
M.D., a neurosurgeon, saw Mr. Eye for low back pain, right
leg pain, neuropathy, and numbness of the left leg on March
27, 2017. He diagnosed lumbar disc herniation, right leg
weakness, and lumbar stenosis and referred Mr. Eye for an
MRI. The MRI was performed on March 28, 2017, and showed
facet arthropathy and a disc bulge at L4-5 with mild
bilateral foraminal narrowing and epidural lipomatosis. At
L5-S1 there was anterolisthesis due to bilateral
spondylothesis, a disc bulge, and moderate bilateral
foraminal narrowing. At L2 there was a new disc herniation
with extra nerve root impingement on the right side.
April 3, 2017, treatment note by Dr. Underwood indicates Mr.
Eye reported constant pain in his lumbar spine that radiates
down the right leg and into the right groin. He also had
numbness in the left leg and tingling in two toes. Dr.
Underwood diagnosed lumbar disc herniation, lumbar
radiculopathy, leg pain, and leg weakness. He recommended
nerve blocks and physical therapy. He also recommended weight
reduction to a body mass index under forty so Mr. Eye could
be considered for surgery. Dr. Biundo saw Mr. Eye for follow
up and recommended nonsurgical management on May 11, 2017. On
June 7, 2017, he requested a consultation for Mr. Eye with
pain management. The claims administrator denied the request
on June 23, 2017.
Soulsby performed an independent medical evaluation on June
13, 2017, in which he found that Mr. Eye had not reached
maximum medical improvement. He noted that surgical
intervention was on hold at the present time until he could
lose some weight. Dr. Soulsby stated that he still believed
Mr. Eye would benefit from surgical decompression of his
returned to Dr. Biundo on July 14, 2017, for low back pain,
lumbar spondylosis, and lumbar stenosis. Dr. Biundo noted
that medial branch block testing/RFA was denied due to weight
issues. Dr. Biundo also completed an Attending
Physician's Report in which he stated that Mr. Eye was
temporarily and totally disabled from July 14, 2017, to
September 14, 2017. The claims administrator closed the claim
for temporary total disability benefits on August 2, 2017.
September 29, 2017, addendum to his evaluation, Dr. Soulsby
stated that if Dr. Underwood would not perform surgery due to
Mr. Eye's weight, then he could be considered to be at
maximum medical improvement because no other treatment is
available. However, he also noted that since July 14, 2017,
Mr. Eye had begun to lose weight and was making excellent
progress. Dr. Soulsby opined that he would be at a body mass
index under forty and a weight appropriate for surgery in
four to six weeks if he continued his current weight loss
testified in a deposition on September 29, 2017, that he
tried epidural injections, physical therapy, and nerve
blocks. He still experiences some pain in his right leg and
pelvis. He also has pain in his left leg and thigh with
burning sensations in his calf. He stated that he sustained a
back sprain in 2012 but recovered fully without treatment.
Mr. Eye testified that his body mass index was currently
42.38 and he was still attempting to lose weight but the
process was slow.
Office of Judges reversed the claims administrator's
decisions in its January 31, 2018, Order. It found that the
claims administrator's June 23, 2017, denial of the
request for a referral to pain management was based upon
incorrect reasoning. Specifically, the claims administrator
stated that its decision was based upon Dr. Soulsby's May
11, 2017, independent medical evaluation which stated that
Mr. Eye had reached maximum medical improvement. However, the
Office of Judges found in reviewing the evaluation that Dr.
Soulsby stated that Mr. Eye had not reached maximum medical
improvement and that he would benefit from surgery. Dr.
Soulsby later stated in his September 29, 2017, addendum that
if Dr. Underwood would not perform surgery due to Mr.