B.J.R. v. Huntington Alloys Corporation ( 2022 )

FILED
January 11, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
B. J. R.,
Claimant Below, Petitioner
vs.) No. 20-0548 (BOR Appeal No. 2018024598)
(Claim No. 2054921)
HUNTINGTON ALLOYS CORPORATION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner B. J. R., by Counsel Edwin H. Pancake, appeals the decision of the West Virginia
Workers’ Compensation Board of Review (“Board of Review”). 1 Huntington Alloys Corporation,
by Counsel Steven K. Wellman, filed a timely response.
The issues on appeal are an additional compensable condition and medical benefits. The
claims administrator denied a request for authorization of a neurosurgical consultation on October
3, 2018. In two separate decisions dated December 17, 2018, the claims administrator denied the
addition of right side sacroiliac joint dysfunction to the claim and denied authorization of a right
sacroiliac joint injection. The Workers’ Compensation Office of Judges (“Office of Judges”)
affirmed the decisions in its November 21, 2019, Order. The Order was affirmed by the Board of
Review on June 25, 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.
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Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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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
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).
B. J. R., a lead pitman and operator, injured his right shoulder and right leg while lifting a
gum barrel on May 10, 2018. He sought treatment that day from St. Mary’s Medical Center for
right shoulder and right ankle pain. He denied neck or back pain. A right ankle x-ray showed a
distal fibular fracture. A right shoulder x-ray showed no acute injuries but did show degenerative
acromioclavicular joint changes. B. J. R. was diagnosed with a right distal fibula fracture. The
following day, B. J. R. was treated by Stanley Tao, M.D., who diagnosed a closed, nondisplaced
fracture of the right fibula. The Employees’ and Physicians’ Report of Injury was completed on
May 14, 2018, and indicates B. J. R. injured his leg, ankle, shoulder, hip, buttock, and back on
May 10, 2018. The diagnoses were listed as back thorax wall contusion, lumbar sprain, right front
thorax wall contusion, and right fibula fracture.
B. J. R. previously suffered a low back injury. On August 12, 2015, he reported to Diana
Stotts, C-FNP, that he had lumbar pain that radiated into his buttocks, as well as numbness. She
diagnosed back pain. B. J. R. underwent a lumbar MRI on August 18, 2015, which revealed a
moderate L4-5 left disc protrusion resulting in left-sided canal and foraminal narrowing as well as
an asymmetric disc bulge at L5-S1 causing left foraminal narrowing. On August 24, 2015, B. J. R.
returned and reported numbness in both legs, as well as feet and back pain. It was noted that he
was waiting for a neurosurgical consultation. A September 16, 2015, Physical Therapy Initial
Evaluation report indicates B. J. R. was seen for lumbosacral spondylosis, thoracic or lumbosacral
neuritis or radiculitis, and back pain. He reported that he injured his back several years prior. B. J.
R. stated that he had constant low back pain, groin pain, back of leg pain, and feet numbness.
Examination showed absent patellar reflexes. The assessment was low back pain with radicular
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pain in both lower extremities, impaired gait, diminished strength, and impaired functional
mobility.
B. J. R. sought treatment for his compensable right ankle injury from Allen Young, M.D.,
on May 14, 2018. Dr. Young found that B. J. R. also injured his upper back, lower back, and right
scapular area as a result of the work injury. Dr. Young diagnosed upper back contusion, lumbar
sprain, rib contusion, and closed right distal fibula fracture. A lumbar x-ray showed multilevel
degenerative changes. A thoracic x-ray showed mild degenerative changes. On July 24, 2018, B.
J. R. continued to have low back pain. He also reported numbness in his right leg and foot. On
August 9, 2018, Dr. Young compared B. J. R.’s current and prior lumbar MRIs and found no
significant difference. On August 30, 2018, Dr. Young noted that B. J. R. had no right-sided lower
back symptoms prior to the compensable injury. On September 26, 2018, B. J. R. reported scrotal
numbness and erectile dysfunction that began a month after the compensable injury. On
examination, Dr. Young found right S1 radiculopathy with radicular symptoms and paresthesia.
He recommended a neurosurgical consultation.
Treatment notes from Generations Physical Therapy indicate B. J. R. was treated for
lumbar sprain, back pain with right sciatica, abnormal gait, and abnormal mobility. B. J. R.
reported that he had no pain but did suffer from numbness down his leg. On June 20, 2018, B. J.
R. reported numbness in his back, buttock, and thigh. On June 22, 2018, B. J. R. had numbness
and sharp pain radiating into his right hip and right leg.
A lumbar MRI was performed on July 17, 2018, which showed a moderate to large left
paracentral disc protrusion with diffuse disc bulging and narrowing of the left lateral aspect of the
canal and lateral recess as well as small central disc protrusions at T10-11 and T11-12. There was
also moderate left and right neural foraminal stenosis, diffuse disc bulging, moderate left neural
foraminal stenosis, degenerative disc changes, and disc protrusions at L4-5 and L5-S1, all of which
were unchanged from a prior study.
A July 30, 2018, treatment note from Davis Chiropractic indicates B. J. R. was treated for
left lumbar, right lumbar, right sacroiliac, left sacroiliac, sacral, left pelvic, and right pelvic
discomfort. Palpation showed indications of subluxation in the lumbosacral, sacroiliac, and pelvic
region. On August 2, 2018, B. J. R. returned to Generations Physical Therapy, and right ankle joint
pain was added to the diagnoses. On August 10, 2018, B. J. R. reported that right ankle pain was
his biggest problem. A lower extremity EMG was performed on September 12, 2018, and it
showed right S1 radiculopathy but no evidence of peripheral neuropathy or myelopathy.
In a September 18, 2018, Independent Medical Evaluation, Marsha Lee Bailey, M.D.,
diagnosed healed right ankle fracture and chronic lumbar pain. Dr. Bailey found a significant
amount of symptom magnification and opined that B. J. R.’s subjective complaints greatly
outweighed the objective findings. Further, B. J. R. suffered from lumbar pain for approximately
three years prior to the compensable injury. Dr. Bailey found that the most significant clinical
findings were at L4-5 and L5-S1, and that they preexisted the compensable injury. Dr. Bailey
opined that though B. J. R.’s right leg complaints are similar to radiculopathy at L5 or S1, the
symptoms cannot be explained by the left-sided L4-5 or L5-S1 disc changes. Dr. Bailey also found
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no explanation for B. J. R.’s reports of bilateral buttock, perineum, and scrotal numbness. Dr.
Bailey opined that B. J. R. had reached maximum medical improvement, and she assessed 0%
whole person impairment.
The claims administrator denied authorization of a neurosurgical consultation on October
3, 2018. In a November 7, 2018, letter to Dr. Young, Dwight Saulle, M.D., stated that he had
examined B. J. R. and diagnosed back pain and right sacroilitis. Dr. Saulle stated that B. J. R.’s
symptoms are indicative of sacroiliac joint pain, and the mechanism of injury could have caused
sacroiliac joint dysfunction. Dr. Saulle referred B. J. R. for sacroiliac joint injections. If repeat
injections did not help, he recommended B. J. R. consider sacroiliac joint fusion. The claims
administrator denied the addition of right side sacroiliac joint dysfunction to the claim on
December 17, 2018. In a separate decision that day, the claims administrator also denied
authorization of a right sacroiliac joint injection.
B. J. R. testified in a January 16, 2019, deposition that he had some back problems in 2015
and was diagnosed with disc bulges at L4-5 and S1-S2. He underwent physical therapy and had
no symptoms until the compensable injury occurred. B. J. R. stated that he missed no work for
lower back issues between 2015 and his compensable 2018 injury.
David Jenkinson, M.D., performed an Independent Medical Evaluation on April 9, 2019,
in which he found no objective evidence of any low back or pelvic structural abnormalities. On
examination, Dr. Jenkinson found no evidence of tenderness directly over the sacroiliac joint and
no pain with stress on the joint. He opined that there was no objective evidence of right sacroiliac
joint dysfunction due to the compensable injury. Dr. Jenkinson also opined that there was no
clinical evidence of lumbar radiculopathy and no need for a neurosurgical consultation. B. J. R.
had reached maximum medical improvement and required no further treatment.
In its November 12, 2019, Order, the Office of Judges affirmed the claims administrator’s
decisions denying a request for authorization of a neurosurgical consultation, denying the addition
of right side sacroiliac joint dysfunction to the claim, and denying authorization of a right sacroiliac
joint injection. The Office of Judges first addressed the addition of right sacroiliac joint
dysfunction to the claim. It found that a preponderance of the evidence indicates B. J. R. suffers
from sacroiliac joint dysfunction. Dr. Saulle diagnosed right sacroilitis. Dr. Bailey found right
sacroiliac joint pain on examination. Further, treatment notes from Davis Chiropractic indicate
spasms, hypomobility, and tenderness indicative of subluxation in the lumbosacral, sacroiliac, and
pelvic region. B. J. R. reported to several physicians that he suffers from right leg, hip, buttock,
and groin pain and numbness. The Office of Judges concluded that the evidence supports Dr.
Saulle’s diagnosis of sacroiliac joint dysfunction. However, the Office of Judges also concluded
that the condition preexisted the compensable injury. It found that prior to the compensable injury,
B. J. R. reported all of the symptoms indicative of sacroiliac joint dysfunction. On August 12,
2015, he reported that he suffered from pain and numbness in his lower back that radiated into his
buttocks. On August 24, 2015, B. J. R. stated that he had right-sided back pain with numbness in
both legs. Finally, on September 16, 2015, B. J. R. reported pain and numbness in his lower back
that radiated into his groin, the backs of his legs, and his feet. Because sacroiliac joint dysfunction
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preexisted the compensable injury, the Office of Judges concluded that it could not be added to
the claim as a compensable condition.
Regarding the request for a sacroiliac joint injection, the Office of Judges found that such
treatment was not necessary for a compensable injury. Dr. Young’s request for an injection was
not submitted as evidence, and there is no other evidence of record indicating such injection is
necessary treatment for anything other than sacroiliac joint dysfunction. Because the condition was
not added to the claim, treatment for it cannot be authorized. The Office of Judges also found that
the request for a neurosurgical consultation could not be authorized. Dr. Young requested the
consultation based on B. J. R.’s S1 radiculopathy and the L5-S1 central disc injury. The claim has
not been held compensable for radiculopathy or any L5-S1 pathology. The Office of Judges found
that the consultation would be aimed at treating B. J. R.’s preexisting, noncompensable conditions.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on June 25, 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). A
preponderance of the evidence indicates that while B. J. R. may suffer from sacroiliac joint
dysfunction, the condition predated the compensable injury by at least three years. B. J. R. reported
essentially the same symptoms that he now alleges as early as 2015. Pursuant to West Virginia
Code § 23-4-1(a) workers’ compensation benefits shall be provided to those employees who have
received personal injuries in the course of and as a result of their covered employment. West
Virginia Code § 23-4-3(a)(1) provides that the claims administrator must provide medically related
and reasonably required sums for healthcare services, rehabilitation services, durable medical and
other goods, and other supplies. Because sacroiliac joint dysfunction is not a compensable
condition in the claim, treatment for the condition in the form of a sacroiliac joint injection and a
neurosurgical consultation was properly denied.
Affirmed.
ISSUED: January 11, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
DISQUALIFIED:
Justice Evan H. Jenkins
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