                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 30, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CAMERON NRC, LLC,                                                             OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 14-0699 (BOR Appeal No. 2049105)
                   (Claim No. 2013005624)

LINDA ASHBY,

Claimant Below, Respondent



                             MEMORANDUM DECISION
      Petitioner Cameron NRC, LLC, by Jillian L. Moore, its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Linda Ashby, by Jonathan C.
Bowman, her attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 24, 2014, in which
the Board affirmed a December 13, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s October 24, 2012, decision
that found a lumbar sprain to be compensable but held that intervertebral disc herniation without
myelopathy at the L4-5 level was not a compensable condition. The Office of Judges found that
both the lumbar sprain and the intervertebral disc herniation without myelopathy at the L4-5
level were compensable conditions. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the case is mature for consideration.

       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.

        Ms. Ashby, a nurse for Cameron NRC, LLC, was attempting to hoist an elderly patient
on August 18, 2012, when she injured her lower back. According to the record, Ms. Ashby had a
series of non-work-related lower back issues. An April 20, 2004, MRI revealed a large left
paracentral disc extrusion at L5-S1 with compression of the traversing left S1 nerve root. On
May 11, 2004, Ms. Ashby underwent a partial hemilaminectomy on the left at L5, partial
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hemilaminectomy on the left at S1, partial medial facetectomy on the left at L5-S1,
foraminotomy on the left at L5-S1, and excision of disc herniation on the left at L5-S1. In his
post-operative diagnosis report Ronald Hargraves, M.D., noted a herniated nucleus pulposus on
the left L5-S1. On May 21, 2005, Ms. Ashby was seen at the emergency room of Wheeling
Hospital with complaints of low back pain radiating down the right leg after lifting a grill into a
van. It was not work related. The impression was back pain, sciatica and right Sl joint tenderness.
On January 31, 2006, Ms. Ashby was seen with complaints of left shoulder and low back pain
after slipping on a wet plastic ground cover. This was also not work related. The diagnosis was
contusion of the left shoulder and low back. On October 10, 2007, Ms. Ashby was seen with
complaints of lower back pain. She bent over and felt a pop in her lower back, which was not
work related. The records indicate it was difficult to examine due to her pain. On March 22,
2009, Ms. Ashby reported to Wheeling Hospital with complaints of lower back pain after getting
out of bed. X-rays showed no fracture or dislocation. On July 2, 2012, Ms. Ashby was seen at
Wheeling Hospital for a bone density scan. It was regarded as normal.

        After her August 18, 2012, injury, Ms. Ashby underwent an MRI. The August 21, 2012,
MRI revealed disc desiccation from L3-4 through L5-S1, disc bulging at L3-4, a midline disc
herniation with associated radial tear at L4-5, stenosis at L4-5, and a disc bulge with
superimposed left paracentral disc herniation and associated radial tear at L5-S1. On September
21, 2012, Ms. Ashby reported to Vincent Miele, M.D., for evaluation. Dr. Miele noted that Ms.
Ashby developed low back pain after an injury at work on August 18, 2012. Ms. Ashby had
recently experienced an increase in her symptoms after attempting to return to light duty work.
Ms. Ashby had low back surgery in 2004 but had been doing well until the work injury of
August 18, 2012. Dr. Miele diagnosed her with axial mechanical back pain secondary to a lifting
injury at work. Dr. Miele recommended physical therapy and a follow-up with Dr. Hargraves in
one month if her symptoms did not improve.

        From September 27, 2012, through October 16, 2012, Ms. Ashby reported to Wheeling
Hospital Physical Therapy for physical therapy. On October 22, 2012, Ms. Ashby was seen by L.
W. DeGarmeaux, D.C. Physical examination revealed tenderness in the right Sl joint and sciatic
region. Range of motion was limited approximately 40% in all planes. Dr. DeGarmeaux read the
MRI of her lumbar spine as showing a disc herniation at L3-4 and L4-5 with spinal stenosis. On
October 23, 2012, Ms. Ashby reported to Terrence Mason, PT, for assessment. Ms. Ashby
complained of lower back pain, diminished right lower extremity strength and range of motion,
lumbar paraspinal muscle spasms, and decreased tolerances to static posture and activities of
daily living. The straight leg raise test was positive on the right. Mr. Mason diagnosed Ms.
Ashby with lumbago, disc displacement, and lumbosacral neuritis. He also recommended four
weeks of physical therapy. The claims administrator held the claim compensable for a lumbar
sprain but denied lumbar intervertebral disc without myelopathy as a compensable component on
October 24, 2012. Ms. Ashby protested.

       From October 25, 2012, through November 5, 2012, Ms. Ashby had various physical
therapy appointments. On December 21, 2012, Dr. DeGarmeaux requested that lumbar disc
displacement be added as a compensable diagnosis in this claim. He also requested pain
management. In support of his request Dr. DeGarmeaux wrote a letter to the claims administrator
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on January 7, 2013. In his letter, Dr. DeGarmeaux noted that Ms. Ashby had not yet rendered
any treatment because all of his requests for treatment were denied. He had, however, performed
clinical and manual examinations of Ms. Ashby and range of motion studies. Dr. DeGarmeaux
opined that attempts should be made to address Ms. Ashby’s injuries with conservative treatment
in hopes of improving her condition and possibly allowing a return to work. Dr. DeGarmeaux
noted that while his requests for pain management had been denied by workers’ compensation,
he was going to try and get her into pain management using her private health insurance. On
January 10, 2013, Ms. Ashby reported to Bill Hennessey, M.D., for an independent medical
evaluation. According to Dr. Hennessey, Ms. Ashby took slow, short steps with symptom
magnification. She used a cane; however, the cane had not been prescribed by a physician. Dr.
Hennessey noted that her range of motion measurements were invalid and consistent with
exaggerated pain behavior and symptom magnification. Dr. Hennessey concluded that she had
reached her maximum degree of medical improvement and had no ratable impairment. Dr.
Hennessey noted that Ms. Ashby had previously undergone surgery at the left L5-S1 level back
in 2004. In that regard, Dr. Hennessey concluded that the recent MRI findings of an abnormal
disc at the L5-S1 level were actually postoperative findings related to the prior 2004 surgery. Dr.
Hennessey noted that this would explain why Dr. Miele did not want to perform surgery on the
L5-S1 disc. Additionally, Dr. Hennessey stated that the left-sided findings on the MRI study
would not explain Ms. Ashby’s right-sided low back pain.

        On February 5, 2013, Dr. DeGarmeaux wrote a letter to Ms. Ashby’s counsel. Dr.
DeGarmeaux noted that he provided chiropractic treatment to Ms. Ashby on six occasions from
January 7, 2013, through January 23, 2013. He also noted that he briefly examined her on eleven
occasions between August 20, 2012, and January 4, 2013. Dr. DeGarmeaux disagreed with Dr.
Hennessey’s finding that the MRI of August 21, 2012, showed a “small incidental bulge
centrally at L4-5.” Dr. DeGarmeaux noted that the MRI of August 21, 2012, was read by Ronald
Landau, M.D., as showing a “midline posterior disc herniation at L4-5, a radial disc tear,
impingement upon the ventral thecal sac, ligamentum flavum hypertrophy, moderate spinal
stenosis and severe impingement upon the bilateral lateral recesses.” Dr. DeGarmeaux also
disagreed with Dr. Hennessey’s opinion that she had reached her maximum degree of medical
improvement in regard to her compensable injury. On February 15, 2013, Ms. Ashby underwent
another MRI. The MRI revealed multilevel disc bulging, a large left paracentral posterior disc
herniation at T10-11, mild ventral cord compression at T10-11, and neural encroachment at T10­
11. On February 28, 2013, Ms. Ashby reported to Bruce Guberman, M.D., for an independent
medical evaluation. He did note that on May 11, 2004, Dr. Hargraves performed surgery on Ms.
Ashby at the L5-S1 level. He also noted that her low back pain resolved after surgery until she
injured her low back in 2009 while bending over. Ms. Ashby was off work for about two months
and received chiropractic treatment. Ms. Ashby stated that her low back pain from the 2009
injury resolved with chiropractic care. Physical examination revealed range of motion
abnormalities in the lumbar spine. Ms. Ashby’s gait was antalgic but not unsteady. There was a
slight decrease in the left Achilles tendon reflex, but no evidence of lumbar radiculopathy. Dr.
Guberman diagnosed Ms. Ashby with an acute and chronic lumbosacral strain and concluded
that Ms. Ashby had reached her maximum degree of medical improvement. Dr. Guberman
opined that the diagnosis of displacement of intervertebral disc without myelopathy should be
added to the claim because Ms. Ashby had been found to have multi-level disc disease on MRI.
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Additionally, Dr. Guberman noted that Ms. Ashby’s prior treating surgeon, who performed a
prior discectomy, had indicated that the annular tear at the L5-S1 level was causing her current
pain.

         On July 15, 2013, Ms. Ashby reported to Christopher Martin, M.D., for an independent
medical evaluation. Dr. Martin concluded that she was at her maximum degree of medical
improvement. Dr. Martin opined that the structural findings seen on Ms. Ashby’s lumbar MRI
were not related to the compensable injury. First, Dr. Martin noted that the injury described by
Ms. Ashby involved motion of the thoracic rather than lumbar spine. He further noted that the
MRI revealed widespread degenerative changes in the lumbar spine except at the L1-2 and L2-3
levels. The widespread nature of the changes indicated that they were caused by age-related
degeneration and not an injury. Additionally, Dr. Martin noted that an MRI of Ms. Ashby’s
lumbar spine performed in 2004 revealed extensive degenerative changes. Dr. Martin opined that
all of the imaging findings seen on the 2012 MRI predated the compensable injury. Finally, Dr.
Martin noted that the annular tear was in the center of Ms. Ashby’s spine and would not cause
the right-sided pain reported.

        The Office of Judges found that Ms. Ashby suffered a lumbar disc displacement in the
course of and as a result of her employment with Cameron NRC, LLC. The Office of Judges
examined whether the herniation of the L5-S1 disc should be held compensable. The Office of
Judges concluded that the L5-S1 disc herniation should not be held compensable because it pre­
existed the August 18, 2012, injury. The Office of Judges noted that both the 2004 and the 2012
MRI scans revealed the L5-S1 disc herniation. The Office of Judges also noted that this opinion
was supported by the report of Dr. Martin, the report of Dr. Hennessey, and the decision of Dr.
Miele not to operate on that level. The Office of Judges found that the L4-5 herniation was a
compensable condition because the 2004 scan did not show a herniation. The Office of Judges
also noted that there was not another persuasive explanation for the herniation at that level.
Furthermore a herniation at that level was supported by the report of Dr. DeGarmeaux. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the Office of Judges and Board of Review. No previous MRI showed a
disc herniation at L4-5. Both Dr. Guberman and Dr. DeGarmeaux believed that the compensable
injury caused the herniation at the L4-5 level, while Drs. Hennessey and Martin did not. The
Office of Judges relied on the reports of Drs. Guberman and DeGarmeaux because there was no
other reasonable explanation as to why the L4-5 disc herniation existed. The Office of Judges, as
the trier of fact, was in the best position to determine the weight and credibility of the evidence
presented, and because its decision was in agreement with the evidence of record, it should be
upheld. The Office of Judges also properly concluded that the L5-S1 disc herniation pre-existed
the compensable injury. The MRI taken in 2004 has been interpreted by several physicians to
show a herniation at the L5-S1 level. Because the L5-S1 herniation was present prior to the
compensable injury, the Office of Judges did not err when it denied adding the condition to the
compensable diagnoses.

        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
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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 30, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Brent D. Benjamin




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