Lisa Gibson v. Cabela's Inc. ( 2022 )

FILED
October 18, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
LISA GIBSON,
Claimant Below, Petitioner
vs.) No. 21-0430 (BOR Appeal No. 2055891)
(Claim No. 2019000059)
CABELA’S, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Lisa Gibson, by Counsel William Gallagher, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Cabela’s, Inc., by
Counsel T Jonathan Cook, filed a timely response.
The issue on appeal is the reopening of the claim for temporary total disability benefits.
The claims administrator denied a reopening of the claim for temporary total disability benefits
on October 22, 2020. On December 12, 2019, the Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises from the
Board of Review’s Order dated April 22, 2021, in which the Board affirmed the Order 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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under West Virginia Code § 23-5-15, in relevant part, as follows:
(c) 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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(d) 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 reweighing 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. Gibson, a warehouse worker, signed a Report of Injury form on February 13, 2018,
alleging she sustained an injury on February 12, 2018, when she was packing bricks of ammo
and putting them on a belt. The physician’s portion of the application was completed by staff at
MedExpress, where she was diagnosed with right shoulder and bilateral thigh strains.
Ms. Gibson underwent an Independent Medical Evaluation with Victoria Langa, M.D.,
on December 3, 2018, for the listed conditions of status post right rotator cuff repair and
sprain/strain of the bilateral hips. Dr. Langa’s examination of the lower back revealed tenderness
over the lower lumbar midline and bilaterally over the posterior superior iliac spine, the
sacroiliac joints, the sciatic notches, and the greater trochanters. It was noted that she also
complained of tenderness upon palpation of the left groin. Straight leg raising was said to be
uncomfortable bilaterally at 90 degrees with hamstring tightness/pulling but no radicular
symptomatology. There were no motor or sensory changes found in the lower extremities. It was
Dr. Langa’s opinion that she had reached maximum medical improvement for the bilateral hip
sprains/strains and has basically recovered from the bilateral soft tissue injuries. Dr. Langa
further stated that her ongoing issues appear to be arising from her lower back.
The claims administrator issued an Order dated March 14, 2019, to provide an updated
list of the compensable conditions in the claim, which included sprain of the right shoulder joint,
a complete rotator cuff tear or rupture, other sprain of the right hip, other sprain of the left hip,
and sprain of the lumbar spine and pelvis. The list of conditions was issued to correct the
previous Orders in the claim. Ms. Gibson did not protest the claims administrator’s decision.
On April 17, 2019, a medical record of Marjorie Proffitt, CRNP, with a family medicine
group, shows that Ms. Gibson complained of low back pain that radiated down into her left hip,
left leg, right hip, and groin. On examination, Ms. Proffitt noted that she had negative straight leg
testing bilaterally. Ms. Gibson was diagnosed with radiculopathy of the lumbar region. Ms.
Proffitt recommended that she continue with physical therapy for a couple of weeks and undergo
a lumbar MRI.
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The claims administrator issued an Order dated April 24, 2019, suspending the claim for
temporary total disability benefits stating that it had not received evidence indicating that Ms.
Gibson continued to be disabled. The claims administrator also stated that the last medical report
it received was from Dante Marra, M.D., dated April 15, 2019, which released her to modified
duty. The claim was closed for temporary total disability benefits by Order of the claims
administrator dated May 23, 2019. Ms. Gibson protested the claims administrator’s decision to
close the claim.
A lumbar spine MRI performed on September 27, 2019, was interpreted to show diffuse
lumbar disc desiccation and mild multilevel disc space narrowing. However, there was no
evidence of a lumbar spine compression deformity. The final impression found no disc
herniation or spinal stenosis. The MRI did reveal lower lumbar facet hypertrophy with
spondylotic changes.
Ms. Gibson completed a “BrickStreet” Claim Reopening Application for Temporary
Total Disability Benefits on November 15, 2019, indicating that she had sustained an
aggravation or progression of the compensable injury. The physician’s portion of the form was
completed by Derek Golna, D.O., at MedExpress. Dr. Golna noted that he examined Ms. Gibson
on November 3, 2019, and diagnosed her with lumbosacral radiculopathy and sprain of the
lumber spine and pelvis. Dr. Golna indicated that Ms. Gibson had sustained an aggravation or
progression of the compensable injury. He recommended an EMG and a neurosurgical
consultation. The request for authorization for a neurology consultation and EMG was denied by
the claims administrator on November 18, 2019, as the consultation and testing were requested
for a diagnosis of lumbar radiculopathy, which was not a compensable diagnosis in the claim.
Ms. Gibson did not protest the claims administrator’s decision.
Ms. Gibson returned to MedExpress on November 18, 2019, for the completion of
additional paperwork in order to reopen her case. She reported her pain to be moderate to severe.
Dr. Golna examined Ms. Gibson and found her to be in distress due to pain, limited range of
motion in the lower back due to pain, paraspinous tenderness and muscle spasm in the lower
back, and decreased strength in the lower left extremity. Dr. Golna diagnosed lumbosacral
radiculopathy and referred her to a neurosurgeon. Dr. Marra treated Ms. Gibson on November
22, 2019, where upon examination he recommended that she continue her activities as tolerated
and to exercise on her own. Dr. Marra stated that given her current status, he would see her back
on an as needed basis. He noted that she was probably two months from reaching her maximum
degree of medical improvement. She was to lift no more than twenty pounds.
On November 22, 2019, the claims administrator issued an Order denying authorization
for an appointment for neurosurgery. The claims administrator stated that the request was not
made for a compensable condition. Ms. Gibson did not protest the claims administrator’s
decision. On December 2, 2019, the Office of Judges affirmed the May 23, 2019, Order of the
claims administrator that closed the claim for temporary total disability benefits.
Ms. Gibson submitted into evidence a second Claim Reopening Application. However,
the bottom portion of Section I and the top portion of Section III were missing. Dr. Golna
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completed Section III on December 11, 2019, and his responses in blocks 6 through 10 are
identical to his responses set forth in Section III of the previous application completed on
November 19, 2019. Along with completing another Claim Reopening Form, Dr. Golna also
completed a UNUM Disability and FMLA Medical Certification for Ms. Gibson on December
11, 2019. He noted that she was unable to work from November 3, 2019, through December 31,
2019. Dr. Golna then noted that she would need to be off of work one time every three months
from December 31, 2019, through December 21, 2020, due to a worsening of her condition. The
diagnoses causing Ms. Gibson to be unable to work were lumbar radiculopathy and sprain of
unspecified parts of the lumbar spine and pelvis. Dr. Golna noted that the treatment plan was for
Ms. Gibson to be referred to a neurosurgeon and for an EMG.
Ms. Gibson was seen by Justin Baker, D.C., on December 18, 2019, for chiropractic
therapy. She presented with complaints of a constant dull aching pain in her low back. The pain
radiated down into her bilateral hips and went all the way down into her ankles. She explained
that the pain started in 2018 at work when she bent down to grab a box, and that the pain is
worse when she sat for long periods of time or did activities. Dr. Baker diagnosed a tear of the
gluteus medius tendon and lumbar radiculopathy.
Ms. Gibson’s request to add radiculopathy as a compensable condition was denied on
December 26, 2019. She protested the claims administrator’s order but failed to submit any
evidence in support of her protest. The Office of Judges issued a Show Cause Order on August 7,
2020, and the protest was subsequently dismissed on September 1, 2020. Therefore, lumbar
radiculopathy remains a non-compensable condition in the claim.
Ms. Gibson returned to Dr. Baker on January 22, 2020. She reported no change since her
last visit. Dr. Baker once again diagnosed a tear of the gluteus medius tendon and lumbar
radiculopathy. Dr. Baker opined that the pain was due to a terrible gluteus medius with
surrounding edema. A lumbar MRI was ordered, and Dr. Baker noted that Ms. Gibson may need
an injection for hip pain. On January 30, 2020, Michael Scarpone, D.O., performed a right hip
ultrasound injection with a treating diagnosis of trochanteric bursitis of the right hip. Dr.
Scarpone diagnosed right gluteal tendinopathy.
On February 2, 2020, Ms. Gibson returned to MedExpress with pain and limited range of
motion in her lower back due to pain. She was diagnosed with lumbar radiculopathy. She was
advised to follow-up with Dr. Baker, who treated her on February 10, 2020. It was noted that her
right hip injection helped the lateral hip, but the groin area was still painful. Dr. Baker diagnosed
lumbar radiculopathy and a tear of the gluteus medius tendon and recommended an MRI of the
lumbar spine. Ms. Gibson underwent an MRI of her lumbar spine on February 17, 2020, which
revealed degenerative changes with the greatest being described at L5-S1. No significant central
canal, lateral recess, or foraminal stenosis were identified.
Kenneth Fortgang, M.D., performed an Age of Injury Analysis report on May 22, 2020.
The findings at L5-S1 were noted to represent a herniation associated with loss of T2 nuclear
signal, mild spondylosis, and modic change markers for chronicity. Dr. Fortgang found that there
was some disagreement with the findings which were described at L5-S1. However, he stated
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that the findings of herniation were associated with markers for chronicity, and the finding was
considered to be chronic. No specific acute findings were noted.
In a Final Decision dated October 22, 2020, the Office of Judges affirmed the claims
administrator’s Order dated December 12, 2019, denying Ms. Gibson’s request to reopen her
claim for the payment of temporary total disability benefits. The Office of Judges found that she
had not established by a preponderance of the evidence that the claims administrator committed
error in denying her request. Specifically, the Office of Judges concluded that her disabling
condition was due to lumbar radiculopathy, which was never added as a compensable component
of the claim. Although Ms. Gibson protested the December 26, 2019, Order denying the addition
of lumbar radiculopathy as a compensable condition, she later withdrew her protest. As a result
of her withdrawal, the Office of Judges dismissed the protest on August 26, 2020. The Office of
Judges also found that the medical evidence of record shows that Ms. Gibson’s lumbar
radiculopathy was the primary, if not exclusive, cause of her temporary disabling condition. By
Order dated April 22, 2021, the Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed the decision.
After review, we agree with the reasoning and conclusions of the Office of Judges, as
affirmed by the Board of Review. Ms. Gibson has degenerative conditions based upon the MRIs
in the record. While she may have lumbar spine pain, the reason she was taken off of work was
due to lumbar radiculopathy, not the sprain that occurred two years prior. Lumbar radiculopathy
is not a compensable component in the claim, and there has been no aggravation or progression
of the compensable condition. The Board of Review did not err in affirming the denial of Ms.
Gibson’s application to reopen her claim for temporary total disability benefits as the request was
made due to the aggravation of a non-compensable condition.
Affirmed.
ISSUED: October 18, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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