Bernard Reed vs. Spartan Mining Company (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS BERNARD REED, Claimant Below, Petitioner vs.) FILED December 11, 2020 No. 19-0649 (BOR Appeal No. 2053001) (Claim No. 2017028985) EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA SPARTAN MINING COMPANY, Employer Below, Respondent MEMORANDUM DECISION Petitioner Bernard Reed, by Counsel Reginald D. Henry, appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”). Spartan Mining Company, by Counsel Sean Harter, filed a timely response. The issue on appeal is Mr. Reed’s entitlement to temporary total disability benefits. On December 19, 2017, the claims administrator closed the claim for temporary total disability benefits. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the claims administrator’s decision in a final decision dated June 4, 2018. This appeal arises from the Board of Review’s Order dated June 18, 2019, in which the Board of Review affirmed the decision 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. On June 6, 2017, Mr. Reed was working as a utility man for Spartan Mining Company when he injured his low back, left leg, and groin while lifting and loading a belt structure. He sought treatment at Bluefield Regional Medical Center. X-rays taken of the lumbar spine revealed moderately severe degenerative changes at L5-S1 with mild to moderate degenerative changes at multiple levels elsewhere. No acute abnormalities were observed. He was discharged from the hospital with a prescription of Medrol. 1 On June 7, 2017, Mr. Reed was treated by a physician at MedExpress in Princeton, WV, and the Employees’ and Physicians’ Report of Injury was completed at that time. The diagnosis was right low back injury. Mr. Reed visited MedExpress on June 13, 2017; June 20, 2017; and June 27, 2017, with complaints of back pain, which radiated to his left leg. He was diagnosed with strain of muscle, fascia and tendon of lower back and left-sided sciatica. An MRI of Mr. Reed’s lumbar spine was taken at Princeton Community Hospital on June 24, 2017. Basim Antoun, M.D., found no acute abnormality, but detected the following abnormalities: [l]igamentum flavum hypertrophy, facet joint arthropathy, mild disc bulge, and spinal canal narrowing at L3-L4; moderate degenerative disc, advanced facet joint arthropathy, ligamentum flavum hypertrophy, severe spinal canal and moderate biforaminal stenosis, left worse than right at L4L5; and advanced disc space narrowing, small focal central posterior disc herniation, facet joint arthropathy, and mild biforaminal narrowing at L5S1. By Order dated June 26, 2017, the claims administrator found the claim compensable for a strain of muscle, fascia, and tendon of lower back, but excluded from compensability lumbago, low-back pain, and sciatica. Mr. Reed did not protest the claims administrator’s decision. Mr. Reed treated with Vincent Wardlow, D.C., on June 11, 2017. Mr. Reed represented to Dr. Wardlow that he was injured when he bent over and picked up a 200-pound structure and immediately felt shooting and sharp pain in his lower back and down his left side. Dr. Wardlow diagnosed Mr. Reed with acute lumbar and lumbosacral strain/sprains and multiple degenerative disc syndrome from L3-S1. He indicated that some complicating factors in this case were facet joint arthritis and some canal stenosis. Dr. Wardlow recommended continued chiropractic treatment. Mr. Reed returned to MedExpress on July 18, 2017, and he reported that he had attended physical therapy. However, Mr. Reed reported that physical therapy had made his symptoms worse. He was diagnosed with spinal stenosis, lumbar region. He was also scheduled for a neurosurgical consultation. Rajesh Patel, M.D., an orthopedic surgeon, examined Mr. Reed on July 31, 2017. Dr. Patel diagnosed the following: lumbar sprain; lumbar spinal stenosis at L4-L5; spondylolisthesis at L4L5, with mild instability; lumbar radiculitis bilaterally; lumbar disc protrusion at L5-S1; mild stenosis at L3-L4; neurogenic claudication; and lumbar radiculitis. Although Dr. Patel believed that Mr. Reed was head for possible surgical intervention, he recommended continued chiropractic treatment and epidural injections. By Order of the claims administrator dated September 1, 2017, the diagnosis of lumbar radiculopathy was accepted as a compensable component of the claim. Mr. Reed protested the claims administrator’s decision and elected to proceed via the expedited adjudication process. In 2 a second Order dated September 1, 2017, the claims administrator granted Dr. Kominsky’s July 19, 2017, request to add lumbar radiculopathy as a compensable condition. Mr. Reed was seen by Brian Yee, D.O, on September 21, 2017. Dr. Yee indicated that he would recommend an epidural steroid injection for pain. He diagnosed Mr. Reed as suffering from lumbar sprain, lumbar disc degeneration, and lumbar radiculopathy. Marsha Bailey, M.D., authored a report dated October 30, 2017, at the request of the claims administrator. She indicated that at the time of her evaluation, Mr. Reed exhibited a significant amount of symptom magnification. She believed that his simple sprain/strain injury of June 6, 2017, had resolved. Citing Mr. Reed’s lumbar spine MRI, she noted that he suffered from moderate to severe to degenerative disc disease, facet arthropathy and ligamentum flavum hypertrophy, which all contributed to varying degrees of spinal canal stenosis. Dr. Bailey identified the conditions as relating to his normal aging process. She placed Mr. Reed into Lumbar Category II and assigned 5% impairment, which she apportioned totally to his preexisting condition of degenerative disc disease. By Order of the claims administrator dated November 19, 2017, Mr. Reed was granted a 0% permanent partial disability award. Mr. Reed protested the claims administrator’s Order, which remains in litigation. A report dated December 18, 2017, by Michael J. Kominsky, D.C., indicated that Mr. Reed had been treating with Dr. Kominsky from July 11, 2017, through December 18, 2017. Dr. Kominsky reported that Mr. Reed continued to experience residual pain related to the compensable injury. He diagnosed Mr. Reed with lumbar joint dysfunction, lumbar sprain/strain, lumbar disc displacement and lumbar spinal stenosis, which he related to Mr. Reed’s injury. Dr. Kominsky commented that he disagreed with the conclusions of Dr. Bailey. He noted that Mr. Reed had been previously functioning at a high level of activity without any pain before the injury of June 6, 2017, and that his preexisting degenerative changes had not precluded Mr. Reed from performing at the physical demand level required for his work. Dr. Kominsky stated that he believed that Mr. Reed had not yet reached his maximum degree of medical improvement. By Order dated December 19, 2017, the claims administrator closed the claim for temporary total disability benefits. Mr. Reed protested the claims administrator’s decision. By Decision of the Office of Judges dated January 31, 2018, the September 1, 2017, Order of the claims administrator holding the claim compensable for strain of muscle, fascia and tendon of the lower back and rejecting the diagnoses of lumbar disc displacement and lumbar spinal stenosis was affirmed. By Corrected Decision of the claims administrator dated March 27, 2018, the diagnosis of lumbar radiculopathy was denied as a compensable condition. On appeal, Mr. Reed argued that a preponderance of the evidence demonstrates that he had not reached his maximum degree of medical improvement at the time of the closure order. Specifically, he referred to the report of his treating physician, Dr. Kominsky, who indicated that he remained temporarily and totality disabled through January 30, 2018. In an Order dated June 4, 2018, the Office of Judges found that a preponderance of credible medical evidence demonstrates that Mr. Reed sustained a sprain/strain injury on June 6, 2017, 3 superimposed on preexisting degenerative conditions, which have not been accepted as compensable in the claim. The Office of Judges determined that the cause of Mr. Reed’s condition does not appear to be his sprain/strain injury, as an independent medical evaluation has demonstrated that from this injury, he has reached his maximum degree of medical improvement. It was reasoned that Mr. Reed’s present condition is more likely related to his preexisting, noncompensable spinal issues. The Office of Judges stated that the fact that he is unable to work due to his conditions does not entitle him to additional temporary total disability benefits under the claim. Because the Office of Judges concluded that Mr. Reed’s condition is not attributable to his compensable injury, the December 19, 2017, Order of the claims administrator was affirmed. In an Order dated June 18, 2019, the Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed the June 4, 2018, final decision. After review, we agree with the decision of the Office of Judges, as affirmed by the Board of Review. A preponderance of the evidence of record supports the claims administrator’s notice of suspension of temporary total disability benefits dated November 19, 2017, and the subsequent Order closing the claim on December 19, 2017, based upon the fact that Mr. Reed has reached his maximum degree of medical improvement. For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed. Affirmed. ISSUED: December 11, 2020 CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison 4
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