                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 12, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TEDDY WHITE,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0527 (BOR Appeal No. 2049957)
                   (Claim No. 2014014204)

GATEWAY EAGLE,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Teddy White, by Reginald D. Henry and Rodney A. Skeens, his attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Gateway
Eagle, by Henry C. Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 30, 2015, in
which the Board affirmed an October 10, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 10, 2014, and
December 16, 2013, decisions which held the claim compensable for a lumbar sprain but
excluded disc protrusion at L2-3, L3 radiculopathy, and lumbar spondylosis as compensable
conditions. The Office of Judges also affirmed the claims administrator’s March 4, 2014,
decision which denied authorization for a right L3 nerve root block. 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.

        Mr. White worked as a utility coal miner for Gateway Eagle. On October 21, 2013, Mr.
White sought treatment from Ira Morris, M.D., his family physician, for pain in his low back and
right side radiating into his right lower extremity. He complained that the pain had been ongoing

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for two weeks, and he indicated that he hurt his back while carrying a ladder.1 Dr. Morris also
noted that his medical records included a low back injury twenty years earlier, but Mr. White
stated that he had not felt any symptoms of this injury since that time. Because the origin of Mr.
White’s symptoms was unclear, Dr. Morris ordered a CT scan of his right hip and lumbar spine.
The scan revealed multilevel degenerative disc disease which was most notable at the L2-3 and
L4-5 discs. There was mild disc bulging at the L3-4 and L5-S1 discs. The scan also revealed
mild spinal stenosis at the L4-5 and L5-S1 discs.

       Two weeks later, on November 6, 2013, Mr. White sought treatment at Thomas
Memorial Hospital Emergency Department for back pain. He admitted that he had felt pain in his
back several weeks earlier, but he stated that his symptoms were improving until the previous
day when he injured his back at work while lifting a box of nails onto his shoulder. Mr. White
complained that his back ached and the pain radiated into his right lower extremity. Mr. White
filed an application for workers’ compensation benefits. The following day, Mr. White
underwent an MRI which revealed multiple disc protrusions at the L2-3 and L3-4 discs. It also
revealed moderate degenerative disc disease and chronic changes throughout the lumbar spine.
Mr. White received treatment for several days at Thomas Memorial Hospital and was discharged
when his pain was adequately controlled.

       Two weeks later, Saghir R. Mir, M.D., performed an independent medical evaluation on
Mr. White. He found that Mr. White had an acute lumbosacral sprain but that it was
superimposed on significant pre-existing degenerative disc disease and small disc herniations at
the L2-3 disc. Dr. Mir found that Mr. White had not reached his maximum degree of medical
improvement and recommended that he receive four to five weeks of physical therapy. On
December 16, 2013, the claims administrator held the claim compensable for a lumbar sprain.
However, it excluded protrusion of the L2-3 disc as a compensable condition of the claim.

       At this time, Mr. White came under the care of John R. Orphanos, M.D., who found that
he had signs of lumbar radiculopathy and spondylosis. Dr. Orphanos noted that Mr. White had
been to physical therapy but his pain had persisted. Dr. Orphanos recommended that Mr. White
continue physical therapy but that he also receive an L3 nerve root block. On March 4, 2014,
however, the claims administrator denied authorization for the requested nerve root block. David
L. Soulsby, M.D., then reviewed Mr. White’s records on behalf of Gateway Eagle. He believed
that Mr. White’s acute lumbosacral sprain was superimposed on severe pre-existing degenerative
disc disease. He found that Mr. White had not reached his maximum degree of medical
improvement and would benefit from continuing physical therapy. Because of the underlying
pre-existing degenerative condition, Dr. Soulsby found that Mr. White would take longer to
recover from the compensable injury.

       Dr. Orphanos then submitted a request to add L3 radiculopathy and lumbar spondylosis
as compensable conditions of the claim. Following this request, Dr. Soulsby submitted a
supplemental report in which he stated that the requested L3 nerve root block was not related to

1
  There is no indication in Dr. Morris’s treatment notes that this incident occurred at work, and Mr. White did not
file an application for workers’ compensation benefits based on this injury.
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Mr. White’s compensable injury because a lumbar sprain would not cause nerve root
impingement. He believed the nerve root block was requested to treat Mr. White’s pre-existing,
non-compensable degenerative conditions. On June 10, 2014, the claims administrator denied the
addition of right L3 radiculopathy and lumbar spondylosis as compensable conditions of the
claim based on Dr. Soulsby’s records review.

         Dr. Orphanos, however, continued to treat Mr. White. He believed that physical therapy
was making his symptoms worse. Because Mr. White failed to respond to other conservative
methods, he believed that a nerve root block was necessary to treat Mr. White’s pain. Dr. Mir
then performed a second independent medical evaluation. He found that Mr. White had some
limitation of the range of motion of his lumbar spine. He believed that the disc protrusion at the
L2-3 level was pre-existing and that Mr. White did not need any additional treatment related to
the compensable injury. Dr. Mir found that Mr. White had reached his maximum degree of
medical improvement. On October 10, 2014, the Office of Judges affirmed the claims
administrator’s December 16, 2013, March 4, 2014, and June 10, 2014, decisions. The Board of
Review affirmed the Order of the Office of Judges on April 30, 2015, leading Mr. White to
appeal.

        The Office of Judges concluded that the disc protrusion at the L2-3 level, right
radiculopathy, and lumbar spondylosis were not compensable conditions of the claim. The Office
of Judges found that these conditions were related to degenerative disc disease which pre-existed
the compensable lumbar sprain. The Office of Judges based this finding upon the presence of
severe degenerative changes at the L2-3 disc on the CT scan taken before the compensable
injury. The Office of Judges further noted that the CT scan revealed small disc bulging
throughout the lumbar spine. The Office of Judges also concluded that the right L3 nerve root
block was not medically related and reasonably required to treat Mr. White’s compensable
lumbar sprain. The Office of Judges found that Mr. White had reached his maximum degree of
medical improvement and that the requested treatment was more likely needed in relation to his
pre-existing and non-compensable conditions. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. White has not demonstrated that the diagnoses of protrusion at the L2-3 disc, right
L3 radiculopathy, and lumbar spondylosis are causally related to his compensable lumbar sprain.
The CT scan and MRI in the record demonstrate that Mr. White had significant pre-existing
degenerative conditions in his lumbar spine. The treatment notes of Dr. Morris further
demonstrate that his degenerative conditions were symptomatic prior to the compensable injury
of November 5, 2013. Mr. White has also not shown that the request for a right L3 nerve root
block is medically related and reasonably required to treat his compensable lumbar sprain. The
second evaluation of Dr. Mir shows that Mr. White has reached his maximum degree of medical
improvement and does not require a L3 nerve root block to treat his compensable lumbar sprain.
Dr. Mir’s opinion is supported by the records review of Dr. Soulsby. The evidence in the record
indicates that the treatment is related to Mr. White’s non-compensable degenerative conditions,
and the Office of Judges was within its discretion in reaching this conclusion.

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        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: April 12, 2016

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




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