                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ANNE DAVIS,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1162 (BOR Appeal No. 2048338)
                   (Claim No. 2012002879)

DOLGENCORP, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Anne Davis, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Dolgencorp, LLC, by Patricia E.
McEnteer, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 23, 2013, in
which the Board affirmed a March 28, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 19, 2012,
decision, which denied a request to add herniated lumbar and thoracic discs as compensable
components of the claim. 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. Davis, a sales associate, sustained lumbar and thoracic sprains in the course of her
employment on July 23, 2011, while stocking containers of juice onto a shelf. She was treated at
MedExpress that same day and diagnosed with thoracic and lumbar sprains/strains. In a follow-
up visit on August 17, 2011, she reported that her pain was mild to moderate and improving. She
continued to work until an August 23, 2011, MRI revealed a herniated disc at T7-8, disc space
narrowing and desiccation from T7-T10, and degenerative disc disease at L4-5 with a central
disc herniation causing effacement of the anterior thecal sac.
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        Ms. Davis began treating with Rajesh Patel, M.D., on October 3, 2011. Dr. Patel stated
that she reported severe pain in her back and numbness in her lower back and left leg. She stated
she is not able to walk due to severe pain. Dr. Patel diagnosed disc herniations at T7-8 and L4-5,
thoracic sprain, lumbar sprain, and throchanteric bursitis and recommended physical therapy.
Ms. Davis showed little improvement with physical therapy so epidural steroid injections were
performed, which also proved to be largely ineffective. Ms. Davis was then referred to a pain
clinic.

       Surveillance was performed on Ms. Davis in November of 2011. She was observed
moving groceries from a cart to a vehicle. She was seen lifting and carrying a Christmas tree
from a vehicle to her home. She was also observed carrying a dog dish and a jug of water. Ms.
Davis reportedly appeared to move in a brisk and fluid manner and used no visible braces or
support devices.

        Paul Bachwitt, M.D., performed an independent medical evaluation on January 27, 2012,
in which Ms. Davis reported injuring her back on July 21, 2011, when a large cart of stock got
stuck. She then injured her back further on July 23, 2011, while stocking a shelf. She reported
severe pain that radiates into her left leg and trouble standing for more than a minute. She also
reported that she does not do many household chores. X-rays showed significant degenerative
changes in the thoracic and lumbar spine. Dr. Bachwitt found that Ms. Davis had reached
maximum medical improvement. He determined that surveillance videos indicated Ms. Davis
was not fully cooperative with range of motion measurements. He concluded that she requires no
further treatment and could return to full duty work.

        Shadrach Jones, M.D., performed a record review in which he opined that the MRI
findings of herniated discs are common and a normal aspect of aging in people of Ms. Davis’s
age. Lumbar herniated discs are only of consequence if there are radicular symptoms, which he
did not find in this case. He stated that Ms. Davis can safely return to full duty work and no
further treatment is necessary. Also, the herniated thoracic and lumbar discs are incidental
findings that pre-existed the work-related injury and are therefore not work-related.

        The claims administrator denied Ms. Davis’s request to add herniated lumbar and
thoracic discs as compensable components of the claim on July 19, 2012. The Office of Judges
affirmed the decision in its March 28, 2013, Order. The Office of Judges found Dr. Bachwitt’s
determination, that Ms. Davis was at maximum medical improvement and required no further
treatment, to be persuasive. Dr. Bachwitt found she could return to full duty work. The Office of
Judges also found Dr. Jones’s report to be persuasive. Dr. Jones reviewed medical records and
found that Ms. Davis was injured lifting juice weighing approximately ten pounds. There was no
traumatic injury and she was diagnosed with lumbar and thoracic sprains. She was taken off of
work following MRIs that revealed herniated discs. Prior to the MRIs, she was performing her
job duties without difficulty. Dr. Jones opined that the MRI findings were incidental, a result of
the aging process, and not work-related. The Office of Judges therefore held that herniated
lumbar and thoracic discs are not compensable components of the claim.

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        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its October 23, 2013, decision. Ms. Davis asserts on appeal that
the Office of Judges incorrectly disregarded Dr. Patel’s opinion. She argues that his opinion is
the best evidence of record and more reliable than that of Dr. Jones who did not examine her.
Also, Dr. Patel’s opinion is supported by MRI evidence. Dolgencorp, LLC, argues that Dr.
Patel’s opinion is based upon information Ms. Davis supplied him and not a review of her
medical records. Her symptoms are not as severe as she claims they are, as can be seen on a
surveillance video. Further, X-rays and MRIs show extensive degenerative changes in the
thoracic and lumbar spine.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidentiary record indicates that Ms. Davis sustained lumbar and
thoracic sprains in the course of her employment on July 23, 2011, and that the herniated lumbar
and thoracic discs are the result of pre-existing degenerative changes and not the work-related
injury.

        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: January 20, 2015

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




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