                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

MURRAY AMERICAN ENERGY, INC.,                                                       FILED
Employer Below, Petitioner
                                                                                 April 25, 2019
                                                                               EDYTHE NASH GAISER, CLERK
vs.)   No. 18-0684 (BOR Appeal No. 2052361)                                    SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
                   (Claim No. 2017009053)

TIMOTHY TOOTHMAN,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Murray American Energy, by Aimee M. Stern and Denise D. Pentino, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Timothy Toothman, by J. Thomas Greene Jr., his attorney, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on
February 8, 2017. The Office of Judges reversed the decision in its December 1, 2017, Order and
held the claim compensable for cervical sprain/strain. The Order was affirmed by the Board of
Review on July 2, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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 that
the Board of Review’s decision is based upon material mischaracterizations and misstatements of
the evidentiary record. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion.

        Mr. Toothman, a coal miner, alleges that he was injured in the course of his employment
on May 27, 2016, while lifting a block. A May 31, 2016, treatment note by J. David Lynch, M.D.,
indicates Mr. Toothman was seen for a new injury that occurred when he lifted a cement block
and felt a pop in his neck. He reported pain in his neck and right shoulder. Dr. Lynch prescribed
physical therapy and medication. On June 14, 2016, Mr. Toothman returned with continued neck
pain and had not started physical therapy. On July 7, 2016, it was noted that he had started physical

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therapy but was still experiencing neck pain that radiated into his right shoulder. He also had some
numbness in his hands.

        The Employee’s and Physician’s Report of Injury indicates Mr. Toothman sustained a
cervical strain in the course of his employment. Dr. Lynch completed the physician’s section on
September 12, 2016. His treatment note that day indicates Mr. Toothman continued to do physical
therapy but still had neck pain. He was still working. Dr. Lynch diagnosed cervical strain. On
October 3, 2016, he reported that physical therapy had stopped. He was having constant neck pain
into the right shoulder. On October 14, 2016, Mr. Toothman reported that he now had occasional
numbness in both hands along with neck pain.

       Mr. Toothman has a history of cervical spine issues. A May 20, 2012, Employee’s and
Physician’s Report of Injury indicates Mr. Toothman injured his neck and back when he struck his
head while dragging a hose. The diagnosis was listed as cervical strain, and the claim number was
2012037697. The claim was held compensable for neck sprain on June 21, 2012. A cervical MRI
was performed on September 12, 2012, and showed mild degenerative changes with a disc bulge
at C3-4 along with mild bilateral foraminal narrowing.

       Mr. Toothman saw Dr. Lynch for the 2012 injury. On December 18, 2012, Mr. Toothman
reported daily radiating neck pain. Dr. Lynch diagnosed cervical strain and recommended physical
therapy. He returned on February 24, 2013, and reported that his neck was stiff. He was again
diagnosed with cervical strain and was to continue physical therapy. An independent medical
evaluation was performed on February 28, 2013, by Joseph Grady, M.D. Dr. Grady found that Mr.
Toothman had reached maximum medical improvement for his compensable neck sprain and
assessed 5% impairment.

       Mr. Toothman saw Dr. Lynch for his cervical sprain for several years. In March of 2013,
Dr. Lynch noted that Mr. Toothman reported daily neck pain. He stated that physical therapy was
helping, and he was released to return to regular duty work. In March of 2014, Mr. Toothman
reported daily pain and stiffness in his neck along with occasional bilateral hand numbness. In
April of 2015, he reported that he was doing worse and experiencing daily neck pain and stiffness,
occasional bilateral hand numbness, and left arm tingling. It was recommended he restart physical
therapy. On February 8, 2016, Mr. Toothman again reported daily neck pain and stiffness with
some hand numbness. One month later, he returned with the same complaints. A cervical MRI
showed no evidence of significant spinal stenosis on February 23, 2017.

         On November 14, 2016, Dr. Lynch requested that herniated disc of the cervical spine be
added as a compensable condition in claim number 2012037697. Based on that request, the claims
administrator added sprain of joints and ligaments of other parts of the neck to that same claim on
April 12, 2017. On February 8, 2017, the claims administrator rejected the claim at issue, stating
that it was a reoccurrence of the prior claim numbered 2012037697.

       Mr. Toothman testified in a deposition on August 24, 2017, that on May 20, 2012, he was
at work dragging something that caught on an overcast. This resulted in him hitting his head on
the top and caused injuries to his neck and back. He underwent physical therapy and used
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medications. Mr. Toothman asserted that on May 27, 2016, he was lifting a block and felt a pop in
his neck and that this was a new injury.

        In a September 6, 2017, record review, Ronald Fadel, M.D., was asked to determine if Mr.
Toothman’s cervical complaints were the result of a new injury or if they were a reoccurrence of
the 2012 compensable injury. Dr. Fadel opined that the May 27, 2016, incident was an
exacerbation of Mr. Toothman’s noncompensable, age-related condition. He stated that the
cervical condition was permanent and would likely cause symptoms for the remainder of Mr.
Toothman’s life. Dr. Fadel noted that there was no objective evidence of permanent changes or an
acute injury to the cervical spine following the May 27, 2016, incident.

        The Office of Judges reversed the claims administrator’s rejection of the claim and held
the claim compensable for cervical sprain/strain on a no lost time basis in its December 1, 2017,
Order. It noted that Mr. Toothman suffered from neck complaints and a neck injury prior to the
May 27, 2016, injury at issue. It found that he had mild degenerative changes. The Office of Judges
determined that Mr. Toothman sustained a soft tissue cervical sprain on May 20, 2012. It noted
that he reached maximum medical improvement as found by Dr. Grady on February 28, 2013. The
Office of Judges noted that per West Virginia Code of State Rules § 85-20, a cervical sprain should
be resolved within eight weeks; however, Mr. Toothamn had cervical complaints from the May of
2012 injury to the present. It looked to Dr. Fadel’s report in which he found that Mr. Toothman’s
issues were the result of his underlying degenerative changes. The Office of Judges found,
however, that the most recent MRI showed mild degenerative changes and does not support Dr.
Fadel’s conclusions. Dr. Lynch examined Mr. Toothman several times between the May of 2012
injury and the present, and the Office of Judges therefore found his opinion to be more persuasive
than that of Dr. Fadel. Dr. Lynch opined that Mr. Toothman sustained a new injury on May 27,
2016, in the form of a cervical sprain. His opinion was found to be supported by the most recent
diagnostic testing as well as Mr. Toothman’s testimony. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed its Order on July 2, 2018.

        After review, we find that the Board of Review’s decision is based on material
misstatements and mischaracterizations of the evidentiary record. Dr. Lynch stated in his treatment
notes that Mr. Toothman sustained a new injury on May 27, 2016, and then completed a diagnosis
update in case number 2012037697 requesting that cervical strain be added to the claim. Further,
Dr. Lynch’s findings of Mr. Toothman’s condition remained essentially the same both before and
after the May 27, 2016, incident. Lastly, claim number 2012037697, was held compensable for
sprain of joints and ligaments of other parts of the neck on April 12, 2017. Since the prior claim
has been updated to include neck sprain, this claim is rejected.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
material mischaracterizations and misstatements of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to reinstate the claims
administrator’s rejection of the claim.


                                                                        Reversed and Remanded.
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ISSUED: April 25, 2019


CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins

DISSENTING:
Justice John A. Hutchison




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