                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
HUNTINGTON ALLOYS CORPORATION,                                                     January 25, 2018
Employer Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0027 (BOR Appeal No. 2051514)
                   (Claim No. 2014033757)


PATRICK WHEELER,
Claimant Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Huntington Alloys Corporation, by Steven K. Wellman, its attorney, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Patrick Wheeler, by
Cathy L. Greiner, his attorney, filed a timely response.

        The issue on appeal is whether lumbar disc herniation/displacement and cervical disc
herniation/displacement should be added as a compensable injury and whether the claim should
be reopened for temporary total disability benefits. The claims administrator denied a request to
reopen the claim for temporary total disability benefits on June 18, 2015. The claims
administrator denied a request for the addition of lumbar disc herniation/displacement and
cervical disc herniation/displacement as compensable conditions on July 24, 2015. The Office of
Judges reversed both of the claims administrator’s decisions, approved both the lumbar disc
herniation/displacement and cervical disc herniation/displacement as compensable conditions,
and approved the requested temporary total disability benefits on August 19, 2016. The Board of
Review affirmed the Order of the Office of Judges on December 16, 2016. 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. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

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        Mr. Wheeler, a steel worker at Huntington Alloys Corporation, injured his neck and back
while attempting to lift a panel at work on May 18, 2014. The following day, Allen Young, M.D.,
treated Mr. Wheeler, who reported that he was injured when he caught a falling breaker panel
door, which jerked his neck and lower back. Dr. Young diagnosed sprains of the lumbar spine
and cervical spine. Dr. Young also noted Mr. Wheeler’s prior history of upper and lower back
problems, which started in 2005 with a lumbar sprain.

        On November 2, 2006, a lumbar spine MRI revealed that the spinal canal appeared
congenitally narrow at all levels. The narrowing was significantly exacerbated at L3-4 and L4-5,
secondary to diffuse disc bulge and facet degenerative changes, which resulted in central canal
narrowing as well as bilateral foraminal narrowing most severe at L4-5. In 2009, Mr. Wheeler
was treated for numbness in his left arm. In a November 26, 2012, report, Allan Koester, M.D.,
stated that he treated Mr. Wheeler who reported a four-year history of his right arm giving out as
well as numbness. Cervical spine x-rays demonstrated some diffuse osteoarthritic changes in the
lower cervical spine. On February 7, 2013, a cervical MRI revealed multilevel degenerative disc
disease with severe canal stenosis and a disc herniation at C3-4. Mr. Wheeler was referred to
Panos Ignatiadis, M.D., a neurosurgeon. Dr. Ignatiadis noted that the MRI showed multiple
degenerative changes, specifically at C3-4, C5-6, and to a lesser extent at C6-7. He diagnosed
cervical radiculopathy at C5-7 on the right, carpal tunnel on the right, and left L4 radiculopathy.

        On May 11, 2013, Mr. Wheeler underwent a lumbar MRI that showed a broad-based disc
bulge with facet degenerative changes at L3-4 and L4-5, causing moderate central canal
narrowing and foraminal narrowing. On May 15, 2015, Mr. Wheeler underwent nerve
conduction studies by Carl McComas, M.D., which revealed evidence of denervation,
reinnervation, and dropout of motor unit potentials in the right triceps and extensor carpi ulnaris
muscles. Dr. McComas stated that the study was consistent with borderline right ulnar
neuropathy and a moderate chronic right C7 radiculopathy. David Caraway, M.D., a pain
specialist, recommended cervical epidural steroid injections on July 30, 2013.

        After the compensable injury on May 28, 2014, Mr. Wheeler underwent a lumbar MRI,
which showed degenerative changes superimposed on congenital spinal stenosis, resulting in
moderate spinal canal and lateral recess stenosis from L2-5. Rodger Blake, M.D., the examiner,
commented that when compared to the previous study, there was a right posterior lateral small
disc protrusion just prior to the entry of the lateral recess at T12-L1. On September 30, 2014, the
claims administrator held the claim compensable for lumbar sprain, thoracic sprain, and neck
sprain.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Mr.
Wheeler on January 20, 2015. Dr. Mukkamala found that Mr. Wheeler had reached maximum
medical improvement and required no further treatment other than a home exercise program. He
commented that Mr. Wheeler demonstrated a significant degree of symptom magnification. He
further stated there was no indication for a neurosurgical consultation, any further investigation,
or a pain management referral. At the time of his examination, Mr. Wheeler complained of pain
and stiffness in his low back, his left leg giving out, pain in both hips, and numbness in both

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arms. Dr. Mukkamala opined that Mr. Wheeler suffered from 11% whole person impairment
attributable to the compensable injury.

        An April 4, 2015, cervical MRI revealed significant multilevel degenerative changes and
disc disease, causing moderate to severe central canal stenosis and cord compression. On May
13, 2015, Mr. Wheeler was evaluated by Dr. Ignatiadis who diagnosed severe myelopathy due to
cord compression from a disc herniation at C2-4, which had been dormant and was aroused by
the compensable injury of May 18, 2014. Dr. Ignatiadis noted that he had previously seen Mr.
Wheeler in April of 2013 for neck pain and at that time, he had no evidence of myelopathy. On
May 21, 2015, Mr. Wheeler underwent an anterior discectomy and fusion at C3-4 for severe disc
herniation, cord compression, stenosis, and myelopathy.

        One week after surgery, Dr. Young saw Mr. Wheeler for a follow-up. Dr. Young stated
that based upon the report from Dr. Ignatiadis, he would send the information to the claims
administrator to see if the claim could be reopened for temporary total disability benefits. Dr.
Young completed an application for temporary total disability benefits suggesting Mr. Wheeler
should receive them from May 18, 2014, through September 11, 2015. On June 18, 2015, the
claims administrator denied the request to reopen the claim for temporary total disability
benefits. On June 30, 2015, Dr. Young completed a diagnosis update requesting the addition of
lumbar disc herniation/displacement and cervical disc herniation/displacement to the claim. The
claims administrator denied this request on July 24, 2015.

        Marsha Bailey, M.D., performed an independent medical evaluation of Mr. Wheeler on
May 5, 2016. Dr. Bailey opined that Mr. Wheeler suffered from chronic whole spine pain with
all four extremity complaints of pain and paresthesia. She stated that Mr. Wheeler’s subjective
complaints far outweighed his physical findings. She observed that his complaints of bilateral
whole arm and bilateral whole leg symptoms were not anatomic and were nondermatomal. She
performed a range of motion study which she described as pain-restricted. Dr. Bailey opined that
Mr. Wheeler had sustained simple sprains and strains of the cervical, thoracic, and lumbar spine
as a result of the compensable injury and that his present complaints pre-existed the compensable
injury. Dr. Bailey believed that Mr. Wheeler had reached maximum medical improvement. She
opined that any surgical intervention was solely a result of the progression of his degenerative
disc disease, degenerative joint disease, and disc osteophyte complexes. She stated that Mr.
Wheeler’s need for surgery would have occurred in the absence of his compensable injury.

        On June 19, 2016, the Office of Judges determined that the claim was compensable for
lumbar disc herniation/displacement and cervical disc herniation/displacement. Because the
request for temporary total disability benefits arose from the now compensable conditions and
cervical spine surgery, the Office of Judges determined that temporary total disability benefits
should be granted as well. The Office of Judges determined that the most reliable and credible
reports of record were the reports of Dr. Ignatiadis, a neurosurgeon, and Dr. Blake, who
identified a new pathology after the compensable injury on May 28, 2014. Dr. Ignatiadis stated
that the compensable jerking injury aroused the dormant, pre-existing condition, inducing
myelopathy. The Office of Judges did not consider Dr. Mukkamala’s report because he did not
render an opinion as to whether the lumbar and cervical disc herniations/displacements were
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compensable conditions. The Office of Judges determined that Dr. Ignatiadis was in a better
position to render a diagnosis on this issue because neurosurgery is his specialty and he
performed surgery on Mr. Wheeler. Further, his report was supported by the findings of Dr.
Blake. The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on December 16, 2016.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The Office of Judges, as the finder of fact, found that Dr.
Ignatiadis’s diagnoses were more persuasive and further supported by the evidence than the other
opinions of record. Dr. Ignatiadis stated, in reference to the cervical spine, that the compensable
jerking injury aroused Mr. Wheeler’s dormant pre-existing condition inducing myelopathy. Dr.
Ignatiadis noted that he had previously treated Mr. Wheeler in April of 2013 for neck pain, and
at that time, there was no evidence of myelopathy. In regard to the lumbar spine, studies taken
prior to the compensable injury showed a disc bulge and degenerative changes at L3-4 and L4-5.
An MRI taken after the compensable injury occurred revealed a right posterior lateral small disc
protrusion just prior to the entry of the lateral recess at T12-L1. Dr. Blake, the examiner, stated
that this was new when compared to the previous, preinjury MRI. Mr. Wheeler clearly suffered a
new lumbar spine injury. The payment of temporary total disability benefits was therefore
proper.

        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 25, 2018

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




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