Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Rogers Petroleum, Inc.

Supreme Court of Appeals of West Virginia

September 13, 2019

DAVID W. MILLER, Claimant Below, Petitioner
v.
ROGERS PETROLEUM, INC., Employer Below, Respondent

          (BOR Appeal No. 2052730) (Claim No. 2014026222)

          MEMORANDUM DECISION

         Petitioner 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.

         The 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.

         The 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.

         Mr. 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 disease.

         Mr. 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.

         The 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.

         On 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.

         Brian 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.

         On 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 radiculopathy.

         Rebecca 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 upcoming evaluation.

         On May 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 study.

         In an 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.

         The 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.