Lewis Lawhorn v. District Veterans Contracting, Inc. ( 2021 )

FILED
STATE OF WEST VIRGINIA September 22, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
LEWIS LAWHORN,
Claimant Below, Petitioner
vs.) No. 20-0398 (BOR Appeal No. 2054971)
(Claim No. 2018022848)
DISTRICT VETERANS CONTRACTING, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Lewis Lawhorn, by Counsel John H. Shumate Jr., appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). District Veterans
Contracting, Inc., by Counsel Steven K. Wellman, filed a timely response.
The issue on appeal is additional compensable conditions. The claims administrator denied
the addition of L5-S1 lumbar spondylolisthesis and lumbar radiculopathy to the claim on March
8, 2019. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the decision
in its December 10, 2019, Order. The Order was affirmed by the Board of Review on May 21,
2020.
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:
(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[.]
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(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. Lawhorn, a supervisor, injured his lower back at work when he slipped and fell on ice
on March 2, 2018. On July 30, 2018, Paul Bachwitt, M.D., performed an Independent Medical
Evaluation in which he noted that Mr. Lawhorn slipped and fell on ice at work, landing on his
buttocks. Lumbar x-rays performed on April 15, 2018, showed bilateral L5 pars defect with
anterolisthesis, degenerative disc disease, and degenerative facet disease but no acute injury. An
April 25, 2018, CT scan showed moderate to severe degenerative changes at multiple areas with
moderate to severe spinal canal narrowing from L3-S1. There were also mild to moderate bilateral
degenerative changes in both sacroiliac joints. A June 16, 2018, MRI showed no acute findings
but did note degenerative changes, bilateral spondylosis, and Grade 1 spondylolisthesis of L5 on
S1. Dr. Bachwitt opined that Mr. Lawhorn had not reached maximum medical improvement and
should remain off of work. Dr. Bachwitt further opined that Mr. Lawhorn’s symptoms are the
result of both the March 2, 2018, injury and preexisting spondylolisthesis, which was previously
asymptomatic.
In an August 16, 2018, treatment note, Andrew Thymius, D.O., stated that Mr. Lawhorn
was seen for low back pain that began in March of 2018. Dr. Thymius reviewed Mr. Lawhorn’s
lumbar MRI and diagnosed low back pain, lumbosacral spondylosis, lumbosacral
spondylolisthesis, and lumbar spondylosis without myelopathy or radiculopathy. Dr. Thymius
stated that Mr. Lawhorn has instability at L5-S1 due to the pars defect. In an August 23, 2018,
follow up, Dr. Thymius noted that Mr. Lawhorn reported that Robert Marsh, M.D., a spinal
surgeon, diagnosed an L5 fracture and recommended surgery. Dr. Thymius diagnosed lumbosacral
spondylosis, L5-S1 instability, and lumbosacral spondylolisthesis. He stated that because Mr.
Lawhorn had instability due to spondylolysis and a pars defect, spinal fusion would be necessary.
Dr. Thymius noted that he had spoken with Dr. Marsh and he agreed that a spinal fusion was
necessary. In an addendum, Mercedes Ramas, M.D., stated that he reviewed flexion and extension
x-rays taken on August 16, 2018, and reviewed the case with Dr. Thymius. Dr. Ramas opined that
Mr. Lawhorn has bilateral pars defect at L5 with mild anterolisthesis. He diagnosed lumbar
spondylosis and generalized arteriosclerotic vascular disease.
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In a November 6, 2018, addendum to his July 30, 2018, report, Dr. Bachwitt diagnosed
lumbar sprain/strain and opined that Mr. Lawhorn’s current symptoms were the result of the
compensable injury. However, Dr. Bachwitt also opined that the request for a spinal fusion was
not related to the compensable injury. Dr. Bachwitt stated that Mr. Lawhorn does not require
surgery. He found that Mr. Lawhorn had good strength; nearly normal straight leg raising; and no
sensory, motor, or reflex abnormalities. He also found that Mr. Lawhorn lacked specific findings
on examination that would indicate a need for surgery.
Dr. Marsh evaluated Mr. Lawhorn for surgery on December 5, 2018. He diagnosed
unspecified back pain of unspecified chronicity, lumbar degenerative disc disease, lumbar
spondylosis, and unspecified spondylolisthesis. Dr. Marsh recommended physical therapy and
referral to Dr. Thymius for L5-S1 epidural steroid injections. Mr. Lawhorn returned to Dr. Marsh
on February 6, 2019, after a physical therapy trial. The diagnoses remained the same, and Dr.
Marsh recommended referral to Robert Crow, M.D., a neurosurgeon, for a second opinion. Dr.
Marsh recommended a posterior lumbar fusion. Dr. Marsh completed a Diagnosis Update on
February 6, 2019, in which he requested the addition of L5-S1 spondylolisthesis and lumbar
radiculopathy to the claim.
In a February 27, 2019, treatment note, Dr. Crow stated that Mr. Lawhorn completed six
weeks of physical therapy. Dr. Crow reviewed the MRI and flexion/extension x-rays and opined
that surgery would not benefit Mr. Lawhorn. Dr. Crow opined that even though Mr. Lawhorn has
spondylolisthesis, his symptoms are not consistent with neurogenic claudication. Dr. Crow stated
that Mr. Lawhorn may benefit from transforaminal steroid injections of the L5 nerve root.
Dr. Bachwitt stated diagnosed lumbar sprain/strain superimposed on preexisting
spondylolisthesis of L5-S1 in his March 4, 2019, report. Dr. Bachwitt stated that spondylolisthesis
usually occurs between the ages of four and six. Dr. Bachwitt opined that Mr. Lawhorn’s current
symptoms were the result of both the preexisting condition and the compensable injury. He further
opined that Mr. Lawhorn would not benefit from surgery and that he should undergo epidural
steroid injections. The claims administrator denied the addition of L5-S1 lumbar spondylolisthesis
and lumbar radiculopathy to the claim on March 8, 2019.
In an April 23, 2019, consultation note, Nashaat Rizk, M.D., diagnosed lumbar spondylosis
without myelopathy or radiculopathy, unspecified spondylolisthesis, back pain of unspecified
chronicity, degenerative disc disease, and back spasm. On May 2, 2019, Dr. Rizk noted that the
majority of Mr. Lawhorn’s pain originated in his back with the remainder in his legs. Dr. Rizk
opined that Mr. Lawhorn’s main problem is chronic lower back pain and recommended lumbar
medial branch blocks. On May 10, 2019, Dr. Rizk performed right lumbar medial branch blocks
on the right at L4-5 and L5-S1 for the diagnosis of lumbar intervertebral disc disorder.
On May 28, 2019, Richard Vaglienti, M.D., treated Mr. Lawhorn for chronic back pain,
chronic radicular pain, and chronic pain following a March 2, 2018, work injury. Dr. Vaglienti
diagnosed unspecified back pain of unspecified chronicity, chronic pain, and bilateral radicular
pain. He recommended branch blocks, physical therapy, and Neurontin. Dr. Rizk administered a
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lumbar epidural steroid injection for the diagnoses of degenerative disc disease, stenosis, and
radicular pain on June 12, 2019.
Mr. Lawhorn testified in a hearing before the Office of Judges on July 9, 2019, that
immediately after slipping and falling on March 2, 2018, he felt sharp pain in his lower back and
bilateral legs, followed by numbness and tingling. His symptoms worsened in the following days.
Mr. Lawhorn denied any back or leg injuries, problems, or treatment prior to March 2, 2018.
It is noted that a January 13, 2012, treatment note by Kimberly Nemati, M.D., indicates
Mr. Lawhorn was in a motor vehicle accident on December 10, 2011. He sought treatment from
Dr. Nemati because he had developed middle and lower back pain with numbness into his left leg.
He was diagnosed with lower back pain, midback pain, and numbness.
In a September 4, 2019, Independent Medical Evaluation, Jennifer Lultschik, M.D.,
diagnosed lumbar sprain/strain resulting from the compensable injury. She opined that Mr.
Lawhorn likely had minimal preexisting spondylolisthesis unrelated to the compensable injury.
Dr. Lultschik disagreed with the diagnosis of lumbar radiculopathy because she found no objective
findings in support. She opined that the compensable injury would have had a negligible effect on
the preexisting spondylolisthesis and that Mr. Lawhorn’s subjective complaints are not supported
by objective evidence.
The Office of Judges affirmed the claims administrator’s denial of the addition of L5-S1
lumbar spondylolisthesis and lumbar radiculopathy to the claim in its December 10, 2019, Order.
It found that the evidence was insufficient to show that L5-S1 spondylolisthesis resulted from the
compensable injury. Dr. Lultschik opined that the condition was preexisting. She explained that
spondylolisthesis rarely results from trauma and instead usually develops in childhood or from
degeneration later in life. Dr. Lultschik asserted that the mechanism of injury in this case was not
sufficient to cause traumatic lumbar spondylolisthesis. The Office of Judges found Dr. Lultschik’s
opinion to be reliable. The Office of Judges also considered Dr. Bachwitt’s opinion. Dr. Bachwitt
diagnosed lumbar sprain/strain superimposed on preexisting L5-S1 spondylolisthesis. Like Dr.
Lultschik, Dr. Bachwitt also noted that spondylolisthesis most often develops in early childhood.
Dr. Bachwitt opined that Mr. Lawhorn’s current symptoms are the result of both the preexisting
spondylolisthesis and the compensable lumbar sprain. The Office of Judges noted that Dr. Marsh,
who completed the Diagnosis Update, failed to provide persuasive evidence that spondylolisthesis
was related to the compensable injury.
Regarding lumbar radiculopathy, the Office of Judges found that Dr. Marsh requested the
addition of the condition to the claim in his February 6, 2019, Diagnosis Update. However, Dr.
Marsh’s treatment note of the same date does not include lumbar radiculopathy in the diagnoses.
The Office of Judges further found that Dr. Thymius saw Mr. Lawhorn on August 16, 2018, and
diagnosed lumbar and lumbosacral spondylosis without myelopathy or radiculopathy. Mr.
Lawhorn was also treated by Dr. Rizk on April 23, 2019, and May 2, 2019, and Dr. Rizk diagnosed
spondylosis without myelopathy or radiculopathy. Dr. Lultschik also found no evidence of
radiculopathy in this case. She noted that the diagnosis was based on subjective complaints and
that there were no objective indicates of radiculopathy. She also noted that mere complaints of
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pain radiating into the leg, particularly when the pain does not extend below the knee, are not
sufficient to establish a diagnosis of radiculopathy. The Office of Judges again found Dr.
Lultschik’s opinion persuasive. The Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on May 21, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by 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). Further,
West Virginia Code of State Rules § 85-20-37.8 provides that comorbidities, such as
spondylolisthesis, are not compensable conditions. A preponderance of the evidence indicates Mr.
Lawhorn’s L5-S1 spondylolisthesis preexisted the compensable injury. Dr. Lultschik asserted that
the mechanism of injury in this case was not sufficient to cause traumatic lumbar spondylolisthesis,
and her opinion is persuasive. Regarding lumbar radiculopathy, Mr. Lawhorn has no objective
findings consistent with the diagnosis.
Affirmed.
ISSUED: September 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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