Rebecca Epling v. Chancellor Health Partners, Inc. ( 2022 )

FILED
March 23, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
REBECCA EPLING,
Claimant Below, Petitioner
vs.) No. 20-0941 (BOR Appeal No. 2055361)
(Claim No. 2018017266)
CHANCELLOR HEALTH PARTNERS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Regina Epling, by Counsel Lori J. Withrow, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Chancellor Health
Partners, Inc., by Counsel Alyssa A. Sloan, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted a 4%
permanent partial disability award on September 18, 2018. The Workers’ Compensation Office of
Judges (“Office of Judges”) affirmed the decision in its June 8, 2020, Order. The Order was
affirmed by the Board of Review on October 27, 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.
(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
1
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).
Ms. Epling, an LPN, injured her back in the course of her employment. Ms. Epling suffered
from preexisting lumbar spine conditions. A lumbar MRI performed on May 13, 2014, showed
severe central canal stenosis and bilateral neural foraminal stenosis at L4-5 with disc bulging and
degeneration. On June 4, 2014, Ms. Epling sought treatment from John Schmidt III, M.D., for low
back pain that radiated into her legs. Dr. Schmidt diagnosed acquired spondylolisthesis and lumbar
spinal stenosis and recommended treatment at a pain clinic. Ms. Epling was treated by Andrew
Thymius, M.D., on July 23, 2014, for pain management. Dr. Thymius reviewed diagnostic imaging
and opined that Ms. Epling’s axial loading of the facet joints had worsened. He recommended
lumbar facet nerve blocks. Lumbar x-rays performed on September 30, 2016, revealed grade 1
anterolisthesis of L4 on 5, posterior facet joint degenerative changes from L3-4 to S1, mild neural
foraminal narrowing at L5-S1, and intervertebral disc space narrowing from L3-S1 varying from
mild to severe.
On the day of her compensable injury, Ms. Epling was helping a patient to sit up in bed
when she felt pain in her lower back. The Employees’ and Physicians’ Report of Injury, completed
that day, indicates Ms. Epling was diagnosed with lumbar sprain. The claim was held compensable
for lumbar sprain on January 31, 2018. On February 11, 2018, a lumbar MRI showed grade 1
spondylolisthesis of L4 on L5; narrowed disc space height; and severe central canal stenosis, neural
foramen stenosis, and disc bulging at L4-5. A February 1, 2018, treatment note from Appalachian
Regional Healthcare indicates Ms. Epling was to be referred to Dr. March due to progressive
neuropathy. Ms. Epling underwent a thoracic spine MRI on February 25, 2018, which showed no
acute findings.
Ms. Epling returned to Dr. Schmidt on March 12, 2018, and he diagnosed grade 1
spondylolisthesis at L4-5 causing severe central stenosis and neural foraminal stenosis. Dr.
Schmidt concluded that Ms. Epling suffers from chronic low back pain and radiculopathy
secondary to L4-5 spondylolisthesis. On April 9, 2018, Ms. Epling was treated at Appalachian
Regional Healthcare for numbness in both legs and a feeling that they would give away. Physical
therapy and a home exercise program were recommended. A June 10, 2018, report from VocWorks
indicates Ms. Epling was determined to not be a surgical candidate by a neurosurgeon. Instead,
injections were recommended, and Ms. Epling was released to return to work.
2
On June 12, 2018, the claims administrator withheld authorization of the addition of lumbar
spinal stenosis, lumbar radiculopathy, and abnormal gait to the claim. Michael Kominsky, D.C.,
performed EMG/NCV testing on June 27, 2018, and interpreted the results as showing moderately
active bilateral L5 radiculopathy as well as S1 radiculopathy. There was evidence of an underlying
sensorimotor peripheral polyneuropathy.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on July 3,
2018, in which he assessed 7% impairment due to range of motion loss. He then apportioned 3%
of the impairment for noncompensable degenerative spondyloarthropathy, leaving 4% for the
compensable injury. In a July 16, 2018, supplement to his evaluation, Dr. Mukkamala stated that
he was provided with Dr. Kominsky’s EMG report. He disagreed with Dr. Kominsky’s
interpretation of the results. Dr. Mukkamala found no clinical evidence of active radiculopathy.
He noted that both he and Dr. Schmidt found normal bilateral strength. On examination, Dr.
Mukkamala also found no motor deficit.
On August 8, 2018, Ms. Epling reported to Matthew Haag, D.O., that lumbar spine
injections were ineffective. On August 24, 2018, the claims administrator withheld authorization
of a lumbar interbody fusion at L4-5 until a second opinion was obtained. The claims administrator
granted a 4% permanent partial disability award on September 18, 2018. The claims administrator
denied authorization for posterior lumbar interbody fusion at L4-5 on November 20, 2018.
Bruce Guberman, M.D., performed an Independent Medical Evaluation on June 24, 2019,
in which he assessed 10% impairment due to range of motion loss and 5% impairment under Table
75 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed, 1993) for a total of 15% impairment. Dr. Guberman then placed Ms. Epling in Lumbar
Category II from West Virginia Code of State Rules § 85-20-C and adjusted the rating to 8%.
The Office of Judges affirmed the claims administrator’s grant of a 4% permanent partial
disability award in its June 8, 2020, Order. It found that Dr. Mukkamala’s report was the most
reliable assessment of Ms. Epling’s impairment. Two physicians of record examined Ms. Epling
and assessed her impairment, Dr. Mukkamala and Dr. Guberman. Dr. Mukkamala concluded that
Ms. Epling suffered from preexisting degenerative lumbar spine conditions which require
apportionment of the impairment rating. Dr. Mukkamala found that Ms. Epling has 7% impairment
and apportioned 3% for the preexisting noncompensable degenerative spondyloarthropathy. Dr.
Guberman found a similar impairment rating, 8%, but declined to apportion the impairment. He
stated that though Ms. Epling has evidence of preexisting degenerative changes in imaging studies,
she would not have received an impairment for such condition prior to the compensable injury. He
also stated that there is no medically objective way to calculate an impairment rating prior to the
compensable injury. The Office of Judges concluded that the AMA Guides allow for the estimate
of preexisting impairment so long as such estimate is made based on accurate historical
information.
Dr. Mukkamala’s apportionment of 3% impairment was found to be reliable and supported
by the evidentiary record. MRIs taken of the lumbar spine prior to the compensable injury showed
severe central canal stenosis, bilateral neural foramina stenosis, and disc bulging at L4-5, as well
3
as disc degeneration. Dr. Thymius recommended lumbar facet nerve blocks in July of 2014. In
June of 2015, Dr. Schmidt, a neurosurgeon, diagnosed acquired spondylolisthesis and spinal
stenosis of the lumbar spine. The Office of Judges found that following the compensable injury,
Ms. Epling underwent an MRI and was again seen by Dr. Schmidt. He diagnosed chronic low back
pain and radiculopathy secondary to the previously diagnosed L4-5 spondylolisthesis. The Office
of Judges concluded that the record shows that Ms. Epling’s preexisting condition contributes to
her impairment. Prior to the work-related injury, Ms. Epling reported pain with movement on range
of motion testing by Dr. Schmidt. Dr. Mukkamala’s report was determined to be the most reliable
and accurate assessment of Ms. Epling’s impairment. The Board of Review adopted the findings
and conclusions of the Office of Judges and affirmed its Order on October 27, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. A preponderance of the evidence indicates that Ms. Epling’s
impairment rating should be apportioned for her preexisting lumbar spine conditions. Ms. Epling’s
preinjury imaging and treatment records support Dr. Mukkamala’s apportionment and impairment
rating. Dr. Guberman’s report was unreliable because he failed to apportion for the preexisting
lumbar spine conditions.
Affirmed.
ISSUED: March 23, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment
4