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Horne v. McDowell County Commission

Supreme Court of Appeals of West Virginia

December 6, 2019

GARY HORNE, Claimant Below, Petitioner
v.
MCDOWELL COUNTY COMMISSION, Employer Below, Respondent

          (BOR Appeal No. 2052380) (Claim No. 2015014126)

          MEMORANDUM DECISION

         Petitioner Gary Horne, by Counsel Gregory S. Prudich, appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). McDowell County Commission, by Counsel Lisa Warner Hunter, filed a timely response.

         The issues on appeal are an additional compensable condition, temporary total disability benefits, and medical benefits. The claims administrator closed the claim for temporary total disability benefits on June 23, 2015. On October 21, 2015, the claims administrator denied a request for spinal surgery. The claims administrator denied the addition of spinal stenosis to the claim on February 4, 2016. The Office of Judges affirmed the decisions in its December 18, 2017, Order. The Order was affirmed by the Board of Review on June 29, 2018.

         The 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 Procedure.

         Mr. Horne, a road deputy, was injured in the course of his employment on September 10, 2014, when he slipped and fell while getting into his cruiser. A September 11, 2014, treatment note from Bluefield Regional Medical Center indicates Mr. Horne was seen for lower back pain after slipping and falling the day before. X-rays showed no abnormalities but did show degenerative and postoperative changes. Mr. Horne was diagnosed with lumbosacral sprain and back contusion. The Employee's and Physician's Report of Injury, completed on September 17, 2014, indicates Mr. Horne was injured when he slipped and fell while getting back into his cruiser. The physician's section was not completed.

         Mr. Horne has a long history of lower back problems. A November 4, 1998, lumbar MRI showed desiccation of the L4-5 disc with early degenerative changes at L5-S1. There was also early spondylosis and a protrusion at L5-S1with mild bilateral S1 neural impingement. A lumbar myelogram performed on February 12, 1999, showed a broad-based disc protrusion at L4-5 and L5-S1. There was no significant stenosis.

         On April 22, 1999, Robert Saltzman, M.D., performed a disability evaluation in which Mr. Horne reported lower back and right hip pain that radiated into his toes. Dr. Saltzman assessed 13% impairment for bulging discs. He noted that there was no anatomic radiculopathy. He found that Mr. Horne had remained stable for the past two months and concluded that he could return to work with no limitations other than those ordered by his treating physician. Dr. Saltzman diagnosed degenerative disc disease at L4-L5. A lumbar MRI showed degenerative disc disease with no evidence of disc herniation or stenosis on January 21, 2000.

         In a February 29, 2000, disability evaluation, T. Scott Ellison, M.D., diagnosed low back pain with lower extremity tingling and degenerative disc disease at L4-5 and L5-S1. Dr. Ellison noted that the symptoms were not present prior to a work-related accident in 1999. Dr. Ellison could not state that the work injury was the cause of the symptoms. He found Mr. Horne could return to work as he had reached maximum medical improvement. A few months later, on May 11, 2000, Tim Adamson, M.D., noted degenerative disc disease at multiple levels with no indication of disc herniation or neural compression.

         A lumbar x-ray taken on May 18, 2002, showed partial lumbarization of the S1 vertebral body. A lumbar MRI was performed on August 13, 2003, and showed small protrusions at L4-5 and L5-S1. Another lumbar MRI was performed on October 20, 2003, and indicated early degenerative changes at L5-S1 with bulging annulus and desiccation of L4-5. On April 7, 2005, a lumbar MRI showed desiccation of L4-5 and L5-S1 and bulging annulus at L5-S1. Mr. Horne underwent fusions at L4-5 and L5-S1 with instrumentation and decompression on July 27, 2005.

         In July of 2012, Mr. Horne was treated by Mahesh Patel, M.D., who noted that he reported lower back pain. He was seen again in April of 2013 and March of 2014 for similar complaints. On August 7, 2014, Robert Kropac, M.D., performed a consultation and evaluation in which he noted that Mr. Horne reported neck pain and bilateral shoulder pain. He also reported constant lower back pain that was aggravated by bending, stooping, sitting, and standing.

         After the compensable injury at issue, a lumbar MRI was performed on October 5, 2014. It revealed fusions from L3-L5, degenerative annular bulging from L1-L3, and moderately severe degenerative facet hypertrophy at L2-3. Mr. Horne was treated by Florence Neri, M.D., who indicated on October 13, 2014, that Mr. Horne complained of low back pain. Dr. Neri diagnosed low back strain and excused him from work for two weeks. Mr. Horne was seen by Jody Helms, M.D., on November 6, 2014. Dr. Helms diagnosed cervical and lumbar strain with some radicular complaints in both the upper and lower extremities and prescribed physical therapy. The claim was held compensable for low back contusion on November 17, 2014.

         A cervical MRI performed on December 1, 2014, showed mild lordotic straightening and mild multilevel degenerative changes. Mr. Horne sought treatment from Bluefield Regional Medical Center Emergency Room on December 15, 2014, for neck pain. Mr. Horne reported pain in his lumbar and cervical spine as well as radicular symptoms into both arms and the right leg. He was diagnosed with sciatica, paresthesia, and degenerative disc disease. On December 16, 2014, the claims administrator authorized temporary total disability benefits until Mr. Horne was released to return to work.

         Dr. Kropac performed an independent medical evaluation on June 11, 2015, in which he noted that Mr. Horne had previously been granted 13% impairment for a lower back injury that occurred in 1999. Dr. Kropac opined that Mr. Horne could currently return to light duty work. He also opined that the lumbar symptoms all preexisted the compensable injury and noted that Mr. Horne was seen in his office a week before the compensable injury with ongoing neck and lower back pain. Dr. Kropac therefore apportioned 50% of his complaints to preexisting conditions. He concluded that Mr. Horne had reached maximum medical improvement and assessed 4% cervical impairment and 0% lumbar impairment.

         Mr. Horne was granted a 4% permanent partial disability award on June 19, 2015. The claims administrator closed the claim for temporary total disability benefits on June 23, 2015. On September 16, 2015, Mr. Horne underwent a lumbar MRI that showed a prior fusion from L4-S1 as well as degenerative changes at L3-4 with mild bilateral neural foraminal narrowing and borderline spinal stenosis. The claims administrator denied a request for spinal surgery on October 21, 2015. Dr. McCarthy completed a diagnosis update on ...


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