Dana E. Moore v. Arch Coal, Inc. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DANA E. MOORE,
Claimant Below, Petitioner
vs.) No. 20-0672 (BOR Appeal No. 2055192)
(Claim No. 2017026735)
ARCH COAL, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Dana E. Moore, by Counsel Lori J. Withrow, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Arch Coal, Inc., by
Counsel Daniel G. Murdock, filed a timely response.
The issues on appeal are additional compensable conditions and permanent partial
disability. The claims administrator granted a 5% permanent partial disability award for the
cervical spine on August 7, 2018. On November 12, 2018, the claims administrator denied the
addition of chronic neck and back pain and neck pain with neurological deficit to the claim. The
Workers’ Compensation Office of Judges (“Office of Judges”) reversed the decisions in its January
29, 2020, Order, granted a 13% permanent partial disability award, and added thoracic strain to
the claim. The Order was reversed by the Board of Review on August 4, 2020, and the claims
administrator’s August 7, 2018, and November 12, 2018, decisions were reinstated.
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.
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.
....
(d) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or 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 provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. 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. Moore, a coal mine airway examiner, injured his neck at work on May 10, 2017. While
fleeing a falling rock, Mr. Moore struck his head on a crib block. Mr. Moore finished his shift that
day and was then transported to Broaddus General Hospital via ambulance. CT scans of the head,
thoracic spine, and cervical spine showed no acute injuries. Mr. Moore was diagnosed with neck
strain, thoracic strain, and a head injury. The Employees’ and Physicians’ Report of Injury was
completed that day and indicates Mr. Moore sustained a cervical strain, thoracic strain, and a head
injury. The claim was held compensable for head contusion and neck strain on May 12, 2017.
Mr. Moore sought treatment for the compensable injury from Marilyn Bonfili, M.D., on
May 16, 2017. He reported neck pain, stiffness, spasms, and tenderness that radiated into the left
shoulder. Mr. Moore was to undergo physical therapy. A cervical MRI was performed on July 27,
2017, and showed mild disc bulging at C6-7 with no herniation or stenosis. Mr. Moore returned to
Dr. Bonfili on September 1, 2017, and stated that physical therapy was not helping. He reported,
however, that he had not been in three weeks. Dr. Bonfili recommended physical therapy and
increased medication. On November 16, 2017, Dr. Bonfili stated that Mr. Moore reported no
change in his existing symptoms, and he had developed pain in his right shoulder.
P. Kent Thrush, M.D., performed an Independent Medical Evaluation on April 4, 2018, in
which Mr. Moore reported severe stiffness and chronic aching in his neck. Mr. Moore stated that
he worked light duty until he retired in June of 2017. Dr. Thrush reviewed Mr. Moore’s MRIs and
2
found that a 2007 scan showed a subtle bulge at C6-7. 1 The post-injury MRI showed a bulge at
C6-7 that was only slightly larger. Dr. Thrush concluded that Mr. Moore had reached maximum
medical improvement and required no additional treatment. He stated that Mr. Moore’s range of
motion measurements were invalid due to guarding. Using Table 75 of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed 1993), Dr. Thrush found
4% impairment for the cervical sprain. He placed Mr. Moore in Cervical Category II from West
Virginia Code of State Rules § 85-20-E and adjusted the rating to 5%. Dr. Thrush found that Mr.
Moore fully recovered from the head contusion and sustained 0% impairment.
On June 13, 2018, Bruce Guberman, M.D., performed an Independent Medical Evaluation
in which he diagnosed resolved head contusion, chronic posttraumatic cervical strain, and chronic
posttraumatic thoracic strain. Mr. Moore had reached maximum medical improvement. For the
head injury, Dr. Guberman found 0% impairment. Dr. Guberman found 4% cervical impairment
using Table 75 of the AMA Guides and 7% impairment for range of motion deficits. He then
placed Mr. Moore in Cervical Category II from West Virginia Code of State Rules § 85-20-E and
adjusted the rating to 8%. For the thoracic spine, Dr. Guberman found 2% impairment using Table
75 of the AMA Guides and 3% impairment for range of motion deficits. The impairments
combined for 5% thoracic spine impairment. Combining the 8% cervical impairment with the 5%
thoracic impairment, Dr. Guberman’s total rating was 13%.
The claims administrator granted a 5% permanent partial disability award for the cervical
spine on August 7, 2018. On October 2, 2018, Dr. Bonfili completed a Diagnosis Update in which
she stated that Mr. Moore had chronic neck and back pain with the secondary diagnosis of neck
pain with neurological deficit post-injury. It was noted that Mr. Moore’s symptoms were not
present prior to the compensable injury and that the symptoms were worsening. The claims
administrator denied the addition of chronic neck and back pain and neck pain with neurological
deficit to the claim on November 12, 2018.
Mr. Moore testified in a February 13, 2019, deposition that he sustained a prior work injury
in 2008. He had no lingering symptoms from the injury and returned to work within a week. At
the time of the compensable injury at issue, Mr. Moore was having no neck or mid back symptoms.
Mr. Moore stated that he finished his shift the day of his injury, but he was in pain, so an ambulance
was called. Mr. Moore testified that he was unable to return to work following his accident. On
May 7, 2019, Mr. Moore returned to Dr. Bonfili and reported no changes in his pain level. He also
stated that he had ongoing numbness and tingling in his upper back and bilateral shoulders.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on July 8,
2019, in which he diagnosed resolved head injury and cervical sprain. Mr. Moore had reached
maximum medical improvement. Dr. Mukkamala found 0% impairment for the head injury. For
the cervical spine, Dr. Mukkamala found 9% impairment due to range of motion deficits. Under
Table 75 of the AMA Guides, he assessed 4% impairment. His combined impairment rating was
13%. Dr. Mukkamala then placed Mr. Moore in Cervical Category II from West Virginia Code of
1
The radiologist’s interpretation of the December 3, 2007, MRI was that it showed no
abnormalities, disc bulges, herniations, or spinal canal narrowing.
3
State Rules § 85-20-E and adjusted the rating to 8%. Dr. Mukkamala opined that the impairment
was due to both a preexisting degenerative condition and the compensable injury. Dr. Mukkamala
noted that Mr. Moore had received a 5% permanent partial disability award and opined that he was
fully compensated for the compensable injury. Regarding the thoracic spine, Dr. Guberman found
no thoracic spine impairment. He opined that Dr. Guberman’s findings of 8% cervical spine
impairment should have been apportioned and that Dr. Guberman was unaware of Mr. Moore’s
prior injury and cervical symptoms. Dr. Mukkamala opined that Mr. Moore did not injure his
thoracic spine in the compensable injury.
In its January 29, 2020, Order, the Office of Judges reversed the claims administrator’s
decisions granting a 5% PPD award for the cervical spine and denying the addition of chronic neck
and back pain and neck pain with neurological deficit to the claim. The Office of Judges instead
granted a 13% award and added thoracic strain to the claim. It found that when Mr. Moore was
initially treated, he reported neck and thoracic spine symptoms and was diagnosed with cervical
and thoracic strains. Additionally, a thoracic CT scan was performed. The Office of Judges found
that thoracic strain was also listed as a condition on the physician’s section of the Employees’ and
Physicians’ Report of Injury. Mr. Moore was treated for the compensable injury by Dr. Bonfili,
who noted neck pain that radiated into the trapezius, left shoulder, and scapula. She requested the
addition of chronic neck and back pain and neck pain with neurological deficit to the claim. The
Office of Judges concluded that the back pain referred to is the thoracic spine. Though Dr.
Mukkamala opined that the pain was in the left scapular area, the Office of Judges determined that
a preponderance of the evidence indicates Mr. Moore sustained a thoracic strain as a result of the
compensable injury.
Regarding permanent partial disability, the Office of Judges found that the award was
based on the report of Dr. Thrush. Dr. Thrush opined that the 2007 MRI showed a subtle bulge at
C6-7. The Office of Judges found that the report does not document such a finding. His report was
determined to be at odds with the diagnostic evidence and therefore unreliable. The Office of
Judges also found that Dr. Mukkamala’s evaluation was unreliable. Dr. Mukkamala assessed 8%
cervical impairment but then apportioned half for a longstanding preexisting degenerative
condition. The Office of Judges concluded that the apportionment was not supported by the
evidence of record. The 2007 MRI showed no cervical disc bulges, herniations, or spinal canal or
foraminal narrowing. The CT scan performed the day of the injury showed moderate degenerative
changes, but the Office of Judges found no evidence that Mr. Moore had any cervical spine
symptoms prior to the compensable injury. It therefore concluded that Dr. Mukkamala’s
apportionment was unsupported. The Office of Judges determined that Dr. Guberman’s report is
the most reliable of record. He assessed 8% cervical impairment and 5% thoracic spine
impairment. Mr. Moore was already granted a 5% permanent partial disability award; therefore,
the Office of Judges awarded an additional 3% cervical award and a 5% award for the thoracic
spine.
The Board of Review reversed the Office of Judges’ Order in its August 4, 2020, decision.
It found that thoracic sprain is not a compensable condition in the claim. Dr. Bonfili requested the
addition of chronic neck pain longer than three months and neck pain with neurological deficit
after injury to the claim. She did not request the addition of thoracic strain to the claim. Further,
4
the Board of Review found that her treatment notes do not show that Mr. Moore was treated for a
thoracic sprain. It therefore concluded that thoracic sprain should not have been added to the claim.
Regarding permanent partial disability, the Board of Review found that the Office of
Judges’ Order was based on the report of Dr. Guberman. Dr. Guberman found 8% cervical and
5% thoracic spine impairment. The Board of Review determined that his report could not be used
because his rating includes impairment for the noncompensable thoracic sprain. The Board of
Review therefore reinstated the claims administrator’s grant of a 5% permanent partial disability
award for the cervical spine.
After review, we agree with the conclusions of the Board of Review. 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. Barnett v. State Workmen’s Comp. Comm’r, 153 W.
Va. 796, 172 S.E.2d 698 (1970). A preponderance of the evidence fails to support thoracic strain
as a compensable condition in the claim. Though Mr. Moore initially underwent a thoracic spine
CT scan and was diagnosed with thoracic strain at the emergency room on the day of his injury,
the condition was not held compensable, and Mr. Moore did not protest that Order. Further, Dr.
Bonfili’s treatment notes do not indicate a diagnosis of or treatment for a thoracic strain. Also, her
Diagnosis Update requested the addition of chronic neck and back pain longer than three months
and neck pain with neurological deficit after injury to the claim. A thoracic spine condition was
not included. Because thoracic strain is not a compensable condition in the claim, the Board of
Review was correct to find that such condition could not be included in a permanent partial
disability award. The claims administrator’s grant of a 5% award was therefore correctly
reinstated.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
5