Appeal No. 2052981) (Claim No. 2017006140)
Arch Coal, Inc., by Counsel Steven K. Wellman, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). Christopher Sargent,
by Counsel Robert L. Stultz, filed a timely response.
issue on appeal is an additional compensable condition. The
claims administrator denied the addition of L5-S1 herniated
disc to the claim on November 27, 2017. The Office of Judges
reversed the decision in its May 29, 2018, Order and held the
claim compensable for herniated L5-S1 disc. The Order was
affirmed by the Board of Review on October 19, 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
Sargent, a continuous miner operator, was injured in the
course of his employment on September 5, 2016. He was treated
at United Hospital Center that day and was diagnosed with low
back pain. He reported that the back pain radiated into his
right leg and he also had numbness and tingling. Mr. Sargent
followed up with Stephanie Jackson, FNP, on September 7,
2016. Ms. Jackson found that Mr. Sargent was treated for an
injury to his back two days prior. He reported that he
continued to have back pain that radiated down his right leg.
Ms. Jackson diagnosed acute low back pain. Two days later,
Mr. Sargent was treated by Chris Kennedy, D.O., who diagnosed
low back strain and lumbar radiculopathy. He ordered an MRI
which was performed on September 16, 2016, and showed a
herniated L5-S1 disc.
Sargent sought treatment from Russell Biundo, M.D., and on
October 12, 2016, Dr. Biundo diagnosed L5 radiculopathy. He
recommended Neurontin and physical therapy. He stated that
Mr. Sargent could return to work in six weeks. On November
16, 2016, it was noted that Neurontin had helped Mr.
Sargent's symptoms. On December 19, 2016, Dr. Biundo
diagnosed herniated disc and radiculopathy. Mr. Sargent was
to continue his medication and physical therapy but could
return to light duty work.
Mukkamala, M.D., performed an independent medical evaluation
on January 4, 2017, in which he diagnosed lumbar sprain. He
determined Mr. Sargent had reached maximum medical
improvement and assessed 8% impairment. Dr. Mukkamala opined
that there was a causal relationship between the compensable
injury and Mr. Sargent's initial symptoms. However, his
current, ongoing symptoms were the result of a preexisting
degenerative condition. He stated that Mr. Sargent requires
no further medical treatment other than a home exercise
January 26, 2017, treatment note by Dr. Biundo indicates the
diagnosis remained herniated L5-S1 disc with radiculopathy.
He recommended a work hardening program and selective nerve
root block. He stated that Mr. Sargent could only return to
work if he could do light or modified duty. On March 1, 2017,
the diagnosis remained the same. Mr. Sargent was to continue
Neurontin, receive a nerve root block, and continue physical
therapy with work conditioning. He was unable to return to
work. On August 15, 2017, Dr. Biundo completed a diagnosis
update requesting the addition of herniated lumbar disc to
the claim. The claims administrator denied the request on
November 27, 2017.
request for medications and treatment was completed on
January 23, 2018. It was noted that the MRI showed a
herniated L5-S1 disc with encroachment at S1. Authorization
for a neurosurgical consultation and possible repeat MRI was
requested due to continued symptoms with no relief. Mr.
Sargent testified in a February 27, 2018, deposition that he
has suffered no injuries since his work related injury. He
still has severe lower back pain and right leg numbness. He
has been unable to return to work since the compensable
injury occurred. Mr. Sargent testified that his condition has
worsened since he stopped physical therapy. He stated that he
was unaware of any prior lower back injuries.
Office of Judges reversed the claims administrator's
decision and held the claim compensable for L5-S1 herniated
disc on May 29, 2018. It found that the claims
administrator's decision was based on Dr. Mukkamala's
evaluation. The Office of Judges found that when Mr. Sargent
reported his symptoms on the date of his injury, he told
hospital workers that he had lower back pain as well as pain,
numbness, and tingling in his right leg. After an MRI showed
a herniated L5-S1 disc, Dr. Biundo diagnosed L5-S1 herniated
disc. When Dr. Mukkamala evaluated Mr. Sargent, he noted that
the claim was only compensable for lower back sprain and that
his chief complaint was lower back pain that radiated into
the right leg. Dr. Mukkamala opined that there was a causal
connection between Mr. Sargent's initial symptoms and the
compensable injury but that his current symptoms were related
to preexisting degenerative disease. The Office of Judges
determined that it was unclear why Dr. Mukkamala diagnosed
preexisting degenerative disease. The only diagnostic testing
of record was the lumbar MRI which showed a herniated disc
but no preexisting degenerative conditions. Further, the
symptoms Mr. Sargent reported to Dr. Mukkamala were the same
that he reported on the day his compensable injury occurred,
lower back pain that radiated into the right leg along with
numbness and tingling. The Office of Judges found that Dr.
Biundo diagnosed herniated L5-S1 disc, and while he did not
specify his clinical findings for the diagnosis update, his
medical records were submitted. They show that he diagnosed
L5-S1 herniated disc, as did Dr. Kennedy, four days after the
injury occurred. The Office of Judges concluded that a
preponderance of the evidence shows that herniated L5-S1 disc
should be added to the claim. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on October 19, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Pursuant
to West Virginia Code § 23-4-1 (2018), employees who
receive injuries in the course of and as a result of their
covered employment are entitled to benefits. For an injury to
be compensable it must be a personal injury that was received
in the course of employment, and it must have resulted from
that employment. Syl. Pt. 1, Barnett v. State
Workmen's Compensation Commissioner, 153 W.Va. 796,
796, 172 S.E.2d 698, 699 (1970). Immediately following his
injury, Mr. Sargent reported lower back pain that radiated
into his right leg. A lumbar MRI taken shortly after the
injury showed a herniated L5-S1 disc. It showed no indication
of degenerative changes. Dr. Biundo treated Mr. Sargent for
the injury and diagnosed herniated L5-S1 disc. Dr.
Mukkamala's finding of preexisting degenerative changes
is not supported by the weight of the evidentiary record. Mr.
Sargent has shown that he sustained a herniated L5-S1 disc in
the course of and resulting from his employment. The
condition was therefore properly added to the claim.
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it so clearly wrong
based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review's
findings, reasoning and conclusions, there is insufficient
support to sustain the decision. Therefore, the decision of
the Board of Review is affirmed.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan ...