DAVID W. MILLER, Claimant Below, Petitioner
ROGERS PETROLEUM, INC., Employer Below, Respondent
Appeal No. 2052730) (Claim No. 2014026222)
David W. Miller, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Rogers Petroleum, Inc., by Timothy E.
Huffman, its attorney, filed a timely response.
issue on appeal is additional compensable conditions. The
claims administrator denied the addition of lumbar
intervertebral disc displacement to the claim on September
28, 2016. On February 24, 2017, it denied the addition of
right lumbar radiculopathy to the claim. The Office of Judges
affirmed the decisions in its March 9, 2018, Order. The Order
was affirmed by the Board of Review on August 17, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. This 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 Procedure.
Miller, a heavy equipment fueler, was injured in the course
of his employment on August 23, 2013. Treatment notes from
Raleigh General Emergency Hospital that day indicate Mr.
Miller reported an injury to his lower back while pulling on
a hose. He stated that he had pain in his lower back and down
his right leg. He was diagnosed with degenerative disc
Miller sought treatment from Michael Kominsky, D.C., on
August 25, 2013. He reported that he started having severe
low back pain after tugging on hoses at work. Mr. Miller
mentioned a December 4, 2012, injury in which he fell off of
a grader and injured his lower back. The injury had
significantly worsened since that time. Dr. Kominsky noted
that Mr. Miller was examined after the 2012 injury but
received no treatment. Dr. Kominsky diagnosed lumbar
contusion, lumbar sprain/strain, lumbar facet syndrome, L5-S1
sciatic pain, and sacroiliac sprain/strain. Dr. Kominsky
found that Mr. Miller was temporarily and totally disabled
and that he had sustained an aggravation of his 2012 injury.
A lumbar MRI was performed on September 15, 2013, and showed
no significant findings.
Employees' and Physicians' Report of Injury was
completed on February 20, 2014, and indicated Mr. Miller was
injured while tugging on a hose. He was treated at Raleigh
General Hospital that day and was diagnosed with degenerative
disc disease. The claim was held compensable for lumbar and
sacrum sprain/strain on June 10, 2014.
February 24, 2014, Mr. Miller was treated by Teresa
Ricottilli, PAC. The treatment note indicates Mr. Miller
reported lower back pain after a fall in December of 2012. He
was diagnosed with chronic lower back pain. On August 11,
2014, Ms. Ricottilli again indicated that Mr. Miller was seen
for chronic lower back pain since a December of 2012 fall. He
also reported pain into his right leg and that his right leg
had repeatedly given way.
Yee, D.O., saw Mr. Miller on August 4, 2015, for lower back
and right leg pain. He diagnosed lumbar sprain and lumbar
radiculopathy. Dr. Yee noted that the MRI showed no findings
to explain his symptoms and recommended an EMG. The EMG was
performed on October 13, 2015, and showed evidence of
bilateral tarsal tunnel syndrome as well as chronic right
L5-S1 radiculopathy. Mr. Miller returned to Dr. Kominsky on
October 28, 2015, for lower back pain, right leg pain, and
weakness in his right leg. Dr. Kominsky requested a repeat
MRI to check for disc bulges.
November 5, 2015, Mr. Miller was treated by Sara Mooney,
M.D., for constant stabbing pain in his lower back and right
leg. Dr. Mooney diagnosed lumbar sprain and lumbar
radiculopathy at L5. On February 25, 2016, Mr. Miller was
seen for follow up after epidural steroid injections. He
reported that the injections did not affect his symptoms. He
still had constant pain in his lower back that radiated to
the right. The diagnoses remained lumbar sprain and lumbar
Thaxton, M.D., performed a record review on April 19, 2016,
in which she recommended that physical therapy be denied. She
noted that the accepted diagnoses in the claim are lumbar
contusion and lumbar sprain/strain. She found that Dr.
Kominsky listed diagnoses of lumbar contusion, lumbar
sprain/strain, lumbar facet syndrome, L5-S1 sciatic pain, and
sacroiliac sprain/strain. An MRI was negative for any
significant findings. An EMG showed bilateral tibial
neuropathy and was suggestive of chronic L5-S1 radiculopathy.
Dr. Thaxton concluded that Mr. Miller had exceeded the
treatment guidelines set forth in West Virginia Code of State
Rules § 85-20-37.5 (2006) for the treatment of the
compensable lower back sprain. She recommended Paul Bachwitt,
M.D., comment on the need for further physical therapy in his
16, 2016, Dr. Bachwitt performed an independent medical
evaluation. He noted that he had previously examined Mr.
Miller for his December of 2012 lower back injury and found
5% impairment. He opined that the August 23, 2013, injury
aggravated the prior lower back injury. Dr. Bachwitt further
opined that Mr. Miller sustained a simple sprain/strain on
August 23, 2013, that should have resolved long ago. He
stated that the medical documentation does not support a
causal connection between the August 23, 2013, injury and Mr.
Miller's current symptoms. Dr. Bachwitt stated that Mr.
Miller's current complaints are due to obesity, a lack of
physical fitness, and other medical problems. He found that
Mr. Miller had reached maximum medical improvement and
required no further treatment. Dr. Bachwitt assessed 5%
impairment for the lower back. On July 28, 2016, Dr. Kominsky
completed a diagnosis update in which he requested that
lumbar disc displacement and lumbar radiculopathy be added to
the claim. He stated that the diagnoses were based on the EMG
August 18, 2016, physician review, Dr. Thaxton was asked to
determine if lumbar disc herniation and lumbar radiculopathy
should be added to the claim. Dr. Thaxton opined that lumbar
disc herniation should not be added to the claim. She found
that the MRI showed no indication of a disc herniation. She
stated that there was a conflict between the MRI, which
showed no herniation, and the EMG, which was positive for
lumbar radiculopathy. Dr. Thaxton found that Dr. Bachwitt
determined Mr. Miller had reached maximum medical improvement
for the August 23, 2013, injury. Dr. Thaxton opined that
additional medical testing is needed to determine the
compensable components of the claim since there is a conflict
between the EMG and MRI. She declined to comment on the
compensability of the requested conditions until new medical
evidence could be obtained.
claims administrator denied the addition of disc displacement
and radiculopathy to the claim on August 24, 2016. The
StreetSelect Grievance Board reviewed the case on September
21, 2016, and noted that Mr. Miller's MRI was negative
and that he was found to be at maximum medical improvement on
May 16, 2016. It further noted that Dr. Thaxton recommended
denial of the addition of lumbar disc displacement and lumbar
radiculopathy to the claim since the MRI showed no indication
of a disc herniation. The Board agreed with Dr. ...