                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
WARREN CURRY,                                                                     February 23, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0845 (BOR Appeal No. 2051855)
                    (Claim No. 2015010644)

RIO GROUP, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Warren Curry, by Mark Grigoraci, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Rio Group, Inc., by Steven Wellman,
its attorney, filed a timely response.

        Mr. Curry’s claim was held compensable for a lumbar strain/sprain. The issue on appeal
is whether a referral to a neurosurgeon for a consultation should be authorized as reasonable and
necessary medical treatment. On March 3, 2016, the claims administrator denied a request for a
referral to a neurosurgeon. The Office of Judges affirmed the decision in its February 6, 2017,
Order. The Order was affirmed by the Board of Review on August 23, 2017. 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. Curry, a coal miner, was lifting seven foot scoop doors when he injured his left
shoulder and low back on September 30, 2014. On October 7, 2014, he was treated in the
emergency room at Williamson Memorial Hospital for complaints of low back pain. Thoracic x-
rays showed mild degenerative changes with small endplate osteophytes at multiple levels.
Lumbar x-rays showed loss of disc height at multiple levels with endplate osteophytes. Mr.
Curry was diagnosed with a lumbar strain. Prior to the September 30, 2014, injury, Mr. Curry
injured his low back at work in 1979, 1983, and 1986. The 1986 injury was the most serious as it
required a two-week hospitalization.
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        On October 13, 2014, Mr. Curry sought treatment from his family physician, Brian
Francis, M.D., for his shoulder and back. Dr. Francis diagnosed lumbar radiculopathy, prescribed
Prednisone, and ordered physical therapy. A lumbar spine MRI showed degenerative disc disease
throughout the spine, most prominent at L3-L4, with spinal canal stenosis and impingement onto
the L4 nerve root with slight L4 nerve root enlargement. Dr. Francis continued to treat Mr. Curry
for the low back symptoms. On October 27, 2014, Dr. Francis diagnosed Mr. Curry with spinal
stenosis and lumbar radiculopathy. On December 22, 2014, the diagnoses changed to low back
pain and chronic pain syndrome.

       Paul Bachwitt, M.D., performed an independent medical evaluation on January 22, 2015,
regarding a request for epidural steroid injections. Dr. Bachwitt noted that Mr. Curry’s symptoms
included aching, dull back pain that radiated into his right leg. A lumbar spine x-ray revealed
degenerative changes at L3-L4 and L4-L5. Dr. Bachwitt diagnosed lumbar sprain/strain
superimposed on pre-existing degenerative changes. He opined that the pre-existing degenerative
changes of the lumbar spine may have been exacerbated by the September 30, 2014, work injury
and recommended authorization of the epidural steroid injections.

        Mr. Curry continued to treat with Dr. Francis for complaints of low back pain with
radiation into the right leg. Dr. Francis continued to diagnose lumbar stenosis, chronic pain
syndrome, low back pain, and/or lumbar radiculopathy On August 6, 2015, Dr. Bachwitt
performed a follow-up independent medical evaluation regarding a request for EMG/NCV
testing. Dr. Bachwitt diagnosed lumbar sprain/strain superimposed on pre-existing degenerative
changes and a left shoulder sprain and recommended an EMG/NCV of the right lower extremity.
On September 29, 2015, the NCV and EMG testing performed by Naveed Ahmed, M.D., was
suggestive of mild, early right peroneal neuropathy. On November 13, 2015, Mr. Curry treated
with Brendon Coughtry, M.D., who noted the EMG/NCV testing of the right lower extremity
was essentially normal. He diagnosed neuralgia/neuritis; other intervertebral disc degeneration,
lumbar region; other spondylosis with radiculopathy, lumbar region; and radiculopathy,
lumbosacral region.

        On January 26, 2016, Dr. Bachwitt issued a third report after performing a third
evaluation of Mr. Curry. Dr. Bachwitt noted Mr. Curry had received the recommended epidural
steroid injections. Based on the updated medical records regarding the injections and EMG/NCV
testing, Dr. Bachwitt opined that there was no need for any additional treatment. In his opinion,
Mr. Curry’s simple sprain/strain should have resolved within two to three months after the
September 30, 2014, injury. A February 2, 2016, lumbar spine MRI revealed multi-level
degenerative changes, worse at L3-L4 and L5-S1.

       Dr. Francis requested a referral to a neurosurgeon on February 3, 2016. On February 9,
2016, in an addendum to his report, Dr. Bachwitt opined that Mr. Curry’s chronic low back pain
documented in the medical records was not due to the work-related simple lumbar strain/sprain.
Mr. Curry did not need a neurosurgical consultation because there was no clinical evidence of an
operative disc lesion.

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        On March 3, 2016, the claims administrator denied Dr. Francis’s request for a referral to
a neurosurgeon based on Dr. Bachwitt’s opinion. Dr. Bachwitt prepared a second addendum to
his reports after having reviewed the February 2, 2016, lumbar spine MRI report. In Dr.
Bachwitt’s opinion, the disc bulges on the lumbar MRI were not significant. They were mostly
due to degenerative changes that pre-existed the compensable injury. Dr. Bachwitt noted that Mr.
Curry’s lumbar spine range of motion was reasonable. He had a ninety degree straight leg raise,
no muscle weakness, and symmetrical reflexes during his January 26, 2016, evaluation. Dr.
Bachwitt opined that the documented chronic low back pain was not due to the compensable
work injury.

        Dr. Francis testified via deposition on August 5, 2016, that he had been an internal
medicine physician for twenty years and had been Mr. Curry’s physician since at least 2012.
After the September 30, 2014, work injury, Dr. Francis diagnosed Mr. Curry with lumbar
radiculopathy with protruding L3-L4 disc and spinal stenosis of the lumbar spine. In his opinion,
the injury was more than just a simple sprain/strain of the lumbar spine. Mr. Curry continued to
complain of pain in the right lower back that radiated to the right leg, which Dr. Francis
attributed to a pinched nerve. Mr. Curry’s injury was not the type of injury that would resolve in
eight weeks. In Dr. Francis’s opinion, it was reasonable and necessary for Mr. Curry to be
evaluated by a neurosurgeon due to the two year history of radicular back pain. The degenerative
changes seen on the MRIs preceded the injury. It is common for degenerative disc disease to
become symptomatic whether there is an injury or not. Dr. Francis opined that lumbar
radiculopathy should continue to be considered as a diagnosis even in the presence of normal
EMG and NCV studies.

        Marsha Lee Bailey, M.D., performed an independent medical evaluation on November
17, 2016. Mr. Curry reported constant low back pain that extended to his right buttock. Dr.
Bailey noted Mr. Curry’s lumbar range of motion was restricted due to pain. Dr. Bailey
diagnosed chronic low back pain and radiculitis. She opined that the February 2, 2016, lumbar
MRI showed a progression of Mr. Curry’s degenerative disc disease. His complaints were not
consistent with an L4 radiculopathy as lumbar radiculopathy is pain or paresthesias in a
dermatomal distribution that is supported by physical findings. The lower extremity examination
of Mr. Curry showed no neurologic deficit. Additionally, the diagnostic testing showed no
evidence of radiculopathy. In Dr. Bailey’s opinion, Mr. Curry sustained a lumbar sprain and
strain on September 30, 2014. The current complaints were confounded by pre-existing and
progressive degenerative spine disease. Dr. Bailey also believed that a portion of the pain
originated from Mr. Curry’s left hip. In her opinion, Mr. Curry did not need any additional
medical treatment as the result of his injury.

        On February 6, 2017, the Office of Judges affirmed the claims administrator’s denial of
the request for a referral to a neurosurgeon. It found the testimony of Dr. Francis was sincere, but
it was apparent from the testimony that Dr. Francis was not aware of Mr. Curry’s significant
prior back injuries. Additionally, Drs. Bailey and Bachwitt opined that the conditions seen on the
MRI were pre-existing degenerative changes. The degenerative conditions noted in the MRI
reports would not be due to the work injury. The Office of Judges further found that even if the
injury had exacerbated the pre-existing problems that would not make the disc bulges
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compensable. Therefore, the Office of Judges determined that the neurosurgical consultation was
not necessary treatment for the lumbosacral sprain/strain. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August
23, 2017.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Curry had longstanding lumbar spine symptoms. The
claim was compensable for a lumbar sprain/strain. The lumbar sprain/strain should have resolved
within six to eight weeks of the injury. When Mr. Curry experienced ongoing symptoms, he
received epidural steroid injections, underwent EMG/NCV testing, and had a repeat MRI. The
objective testing revealed degenerative changes. The need for the neurosurgical referral was for
the degenerative disc disease, not the work-related lumbar sprain/strain. Therefore, the Office of
Judges’ Order was properly affirmed.

        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: February 23, 2018

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

DISSENTING:
Justice Menis E. Ketchum




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