Roy E. Smith v. King Coal Chevrolet Company ( 2022 )

FILED
January 11, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
ROY E. SMITH,
Claimant Below, Petitioner
vs.) No. 20-0725 (BOR Appeal No. 2055204)
(Claim No. 2019001441)
KING COAL CHEVROLET COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Roy E. Smith, by counsel Reginald D. Henry, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). King Coal Chevrolet
Company, by counsel Timothy E. Huffman, filed a timely response.
The issue on appeal is the denial of additional compensable components to the claim. The
claims administrator issued an Order dated May 22, 2019, which denied the addition of the
following conditions to the claim: sciatica, low back pain, intervertebral disc disorder without
radiculopathy in the lumbosacral region, and spinal stenosis of the lumbar area with neurogenic
claudication. On February 28, 2020, the Workers’ Compensation Office of Judges (“Office of
Judges”) affirmed the claims administrator’s decision. This appeal arises from the Board of
Review’s Order dated August 21, 2020, in which the Board affirmed the Order of the Office of
Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
1
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions.
(c) If the decision of the board represents an affirmation of a prior ruling
by both the commission and the office of judges that was entered on the same
issue in the same claim, the decision of the board may be reversed or modified by
the Supreme Court of Appeals only if the decision is in clear violation of
Constitutional or statutory provision, is clearly the result of erroneous conclusions
of law, or is based upon the board’s material misstatement or mischaracterization
of particular components of the evidentiary record. The court may not conduct a
de novo re-weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Smith sustained an injury to his lumbar spine on July 11, 2018, when he was
cleaning and emptying a dry/wet vacuum while working for King Coal Chevrolet Company. The
next day, he received medical treatment at MedExpress Urgent care where an Employees’ and
Physicians’ Report of Occupational Injury or Disease was completed. The diagnosis listed on the
form was lumbar sprain. An x-ray showed mild disc narrowing at L4-L5 and L5-S1. The claim
was held compensable for strain of the lumbar spine by the claims administrator on July 18,
2018.
On September 24, 2018, Mr. Smith was seen by Robert Crow, M.D. Dr. Crow noted that
Mr. Smith has experienced back pain on and off for a number of years. Dr. Crow reviewed the
results of an MRI of July 28, 2018, which showed left L4-L5 disc herniation and L5-S1 central
right disc protrusion. Instead of surgery, Dr. Crow recommended physical therapy and advised
that he would administer an injection if Mr. Smith failed to improve.
Thereafter, Mr. Smith came under the care of Kimberly Nemati, PA, with New River
Health Associates. An August 29, 2018, treatment note by Ms. Nemati indicates the diagnosis as
spinal stenosis, lumbar region with neurogenic claudication. A treatment note from a September
13, 2018, evaluation listed the assessments as sciatica on the left and intervertebral disc disorder
with radiculopathy in the lumbosacral region. After physical therapy was discontinued, Ms.
Nemati reported on October 31, 2018, that Mr. Smith was losing a lot of weight. She ordered a
TENS unit, recommended injections, and issued return to work slips with restrictions.
Prasadarao B. Mukkamala, M.D., evaluated Mr. Smith at the request of the claims
administrator and prepared a report dated November 27, 2018. Dr. Mukkamala found that Mr.
Smith had reached maximum medical improvement for the approved condition of sprain of
ligaments of the lumbar spine and opined that he had 11% whole person impairment under the
2
American Medical Association’s Guides to the Evaluation of Permanent Impairment, (4th ed.
1993), which was adjusted to 8% pursuant to West Virginia Code of State Rules §85-20-C. Dr.
Mukkamala allocated 4% impairment to preexisting degenerative spondylarthrosis and 4% to the
compensable injury of July 11, 2018.
Mr. Smith continued to experience low back pain, and he continued treatment with Ms.
Nemati. On February 15, 2019, Ms. Nemati completed a Diagnosis Update in which she listed
the following diagnoses: lumbar intervertebral disc without myelopathy, sciatica, low back pain,
and intervertebral disc disorder with radiculopathy of the lumbosacral region. Ms. Nemati also
noted in the clinical findings section that there was spinal stenosis of the lumbar region with
neurogenic claudication.
Following the submission of the Diagnosis Update request, the medical records were
reviewed by Rebecca Thaxton, M.D., for the claims administrator. In her report dated March 28,
2019, Dr. Thaxton recommended that displacement of lumbar intervertebral disc without
myelopathy be added to the claim. She recommended against adding left sciatica, low back pain,
intervertebral disc disorder with radiculopathy of the lumbosacral region, and spinal stenosis
with neurogenic claudication to the claim as compensable diagnoses. The claims administrator
issued an Order dated May 22, 2019, based upon the recommendations of Dr. Thaxton. The
request to add the conditions sciatica, low back pain, intervertebral disc disorder without
radiculopathy of lumbosacral region, and spinal stenosis with neurogenic claudication was
denied. Mr. Smith protested the claims administrator’s Order.
Mr. Smith testified in a deposition on June 4, 2019, that he was emptying a large vacuum
cleaner at work when his back locked up. He reported the injury to his supervisor. The following
day, he went to work, but after complaining about back pain, he sought treatment at MedExpress.
He recalled another time that his back hurt when he worked for the parts service. However, Mr.
Smith testified that he was able to return to work after missing work for a couple of days. He
stated that he was not having any back pain or problems with his back prior to the injury in the
claim.
In a supplemental Independent Medical Evaluation dated October 25, 2019, Dr.
Mukkamala opined that the Grievance Board appropriately denied sciatica, low back pain,
intervertebral disc disorder without radiculopathy of the lumbosacral region, and spinal stenosis
of the lumbar area with neurogenic claudication as compensable conditions in the claim. Dr.
Mukkamala felt that the mechanism of injury indicated that Mr. Smith had a lumbar sprain. He
noted that some medical reports documented a prior medical history of similar back pain, and
that the changes on the MRI were naturally occurring, preexisting, and not causally related to the
compensable injury of July 11, 2018. Dr. Mukkamala concluded that Mr. Smith’s ongoing
symptoms were related to preexisting degenerative spondyloarthropathy and were not causally
related to his compensable injury.
On February 28, 2020, the Office of Judges affirmed the claims administrator’s May 22,
2019, Order, and concluded that Mr. Smith has not proven by a preponderance of the evidence
that the conditions of sciatica, low back pain, and intervertebral disc disorder with radiculopathy
3
of the lumbosacral region resulted from his compensable injury on July 11, 2018. The Office of
Judges found that Dr. Thaxton’s report of March 28, 2019, provides a very rational and thorough
description of the conditions contained in the Diagnosis Update. It was determined that Dr.
Thaxton’s findings are in line with those of Dr. Crow, and that Mr. Smith did not present medical
evidence to rebut the findings of Dr. Thaxton. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on August 21, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges, as
affirmed by the Board of Review. In her Physician Review report, Dr. Thaxton recommended
that displacement of lumbar intervertebral disc without myelopathy be added to the claim.
However, she recommended that the remaining conditions listed in the Diagnosis Update be
denied. She stated that radiculopathy was not supported based upon Dr. Mukkamala’s evaluation
or Dr. Crow’s report. Dr. Thaxton concluded that low back pain, sciatica, and neurogenic
claudication were symptom codes that were covered by lumbar sprain and disc herniation. Thus,
she felt that these conditions should be denied in the claim. Mr. Smith has not proved by a
preponderance of the evidence that the conditions should be added to the claim.
Affirmed.
ISSUED: January 11, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
4