Appeal No. 2052723) (Claim No. 2016014360)
Jerry Nibert, by Reginald D. Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Globe Specialty Metals, Inc., by Noah A. Barnes
and Jeffrey B. Brannon, its attorneys, filed a timely
issue on appeal is additional compensable conditions. The
claims administrator denied the addition of lumbar
spondylosis without myelopathy and lumbar radiculopathy to
the claim on April 17, 2017. The Office of Judges affirmed
the decision in its March 12, 2018, Order. The Order was
affirmed by the Board of Review on August 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
Nibert, a welder, was injured in the course of his employment
on November 17, 2015, while pushing a stationary welder. A
November 20, 2015, treatment note from Montgomery General
Hospital indicates Mr. Nibert was seen for back pain/injury
that had been present for two to three weeks. Mr. Nibert
reported that the pain radiates into his legs. He was
diagnosed with sciatica. The Employees' and
Physicians' Report of Injury was completed that day by
Jonathan Hess, M.D. He diagnosed lumbosacral strain with
radiculopathy. It was indicated that the injury aggravated a
prior injury or disease.
lumbar MRI was performed on December 4, 2015, and showed
diffuse disc bulging at L3-4 with flattening of the thecal
sac and probable nerve root impingement; diffuse disc bulging
at L4-5 with flattening of the thecal sac and possible nerve
root impingement; bulging at L5-S1; and dehydration and
degenerative disc disease at L3-4, L4-5, and L5-S1. The
claims administrator held the claim compensable for lower
back sprain/strain on December 30, 2015.
Nibert sought treatment from Matthew Walker, M.D., on January
28, 2016, for lower back, buttock, and bilateral leg pain.
Mr. Nibert reported that pain radiated from his buttock, down
his legs, and into his feet. He also reported leg weakness
and numbness. He stated that his symptoms began when he was
pushing on a welder at work. Dr. Walker noted that Mr. Nibert
has a history of lower lumbar pain. Dr. Walker read the MRI
and diagnosed lumbar spinal stenosis, lumbar disc
degeneration, and lumbosacral spondylosis.
Deer, M.D., treated Mr. Nibert on May 26, 2016, for what Mr.
Nibert asserted was lower back pain that began after a
November of 2015 work injury. Mr. Nibert denied any pain
radiating into his legs. Range of motion was abnormal, and he
had tenderness in the lumbar facet joints. Neurological
examination showed no numbness in the lower extremities, and
straight leg raising test was negative. Dr. Deer diagnosed
lumbar disc degeneration, lumbar spondylosis without
myelopathy, and lumbar radiculopathy. On August 9, 2016, Mr.
Nibert reported that physical therapy had provided no relief,
but facet injections gave him moderate relief.
August 20, 2016, Mr. Nibert saw Warren Grace, M.D., and
reported constant back pain with intermittent radiation into
the legs. Examination showed tenderness of the lumbosacral
spine and facet joint, as well as lumbosacral muscle spasms.
Range of motion was abnormal and neurological examination
showed numbness, tingling, and paresthesia in the legs. Dr.
Grace diagnosed lumbar spondylosis without myelopathy or
Landis, M.D., performed an independent medical evaluation on
October 10, 2016, in which he noted that Mr. Nibert had
advanced degenerative changes in both knees and his right
hip. On examination, Dr. Landis found no muscle spasms or
tenderness in the lumbar spine. Dr. Landis concluded that Mr.
Nibert sustained a lumbar sprain/strain as a result of his
compensable injury. The injury was superimposed on
preexisting degenerative arthritic changes in the lumbar
Deer completed a diagnosis update on January 4, 2017, in
which he requested that lumbar spondylosis without myelopathy
and lumbar radiculopathy be added to the claim. He stated
that the request was based on his findings of loss of normal
lumbar lordosis, lumbar facet joint tenderness, abnormal
range of motion, and muscle spasms. The claims administrator
denied the addition of lumbar spondylosis without myelopathy
and lumbar radiculopathy to the claim on April 17, 2017.
May 25, 2017, letter, Dr. Deer stated that Mr. Nibert suffers
from lumbar spondylosis, which is symptomatic secondary to
his work condition. He stated that he has intermittent leg
pain consistent with lumbar radiculitis. He also has numbness
and weakness. Dr. Deer asserted that Mr. Nibert developed
lumbar disc disease from his working conditions, which led to
lumbar radicular inflammation. He noted that the condition
differs from radiculitis. He further stated that lumbar
spondylosis can be an arthritic condition but based on Mr.
Nibert's work and injury, "a symptomatic component
of his spondylosis in my opinion would be compensable at this
Office of Judges affirmed the claims administrator's
denial of the addition of lumbar spondylosis without
myelopathy and lumbar radiculopathy to the claim in its
August 20, 2018, Order. It found that Drs. Deer and Hess
opined that Mr. Nibert sustained lumbar radiculopathy as a
result of the compensable injury. The Office of Judges
concluded that Dr. Hess's opinion should be given less
weight as it was not accompanied by any specific medical
findings. Dr. Deer's opinion was also found to be
unpersuasive. In his May 26, 2016, treatment note, Dr. Deer
stated that straight leg raise was negative and neurological
examination showed no numbness in the legs. The only
potentially positive finding for lumbar radiculopathy was
abnormal bilateral knee and ankle jerk reflexes.
Office of Judges concluded that the opinions of Dr. Walker, a
neurologist, and Dr. Landis, an orthopedic surgeon, were the
most persuasive of record. Dr. Walker's examination was
four months before Dr. Deer's. Dr. Walker found normal
leg raise, motor strength, and deep tendon reflexes. He
diagnosed spinal stenosis, spondylosis, and degenerative disc
disease. Dr. Landis examined Mr. Nibert one month after Dr.
Walker and also found no evidence of lumbar radiculopathy.
Leg raise, motor strength, and deep tendon reflexes were all
normal. Dr. Landis diagnosed lumbar sprain/strain as a result
of the compensable injury. The Office of Judges noted that
Dr. Grace found numbness, tingling, and paresthesia in his
August 26, 2016, examination; however, he did not diagnose
radiculopathy. The Office of Judges concluded that ...