                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              August 13, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CONNIE J. PRUITT,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0395 (BOR Appeal No. 2047725)
                   (Claim No. 2009090827)

MCDOWELL COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Connie J. Pruitt, by Gregory S. Prudich, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. McDowell County Board of
Education, by Marion E. Ray, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 22, 2013, in
which the Board affirmed an October 2, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 26, 2012,
decision denying Ms. Pruitt’s request to add lumbar disc herniation and radiculopathy as
compensable conditions 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. Pruitt worked as a cook for the McDowell County Board of Education. On March 16,
2009, Ms. Pruitt injured her lower back while lifting boxes of food. On April 15, 2009, an MRI
scan was taken, which revealed a broad based bulge at L4-5 and degenerative changes at L4-5.
There was no evidence of disc herniation. Her claim was held compensable for a lumbar strain.
Anbu Nadar, M.D., then evaluated Ms. Pruitt and found that she had reached the maximum
degree of medical improvement. Ms. Pruitt continued to experience pain in her lower back. Over
a year after the compensable injury, Ms. Pruitt underwent a second CT myelogram of her lumbar
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spine that revealed a herniated disc at L4-5 which was most pronounced on the left. Rebecca
Thaxton, M.D., reviewed Ms. Pruitt’s claim and found that her current lumbar problems were
related to degenerative changes and not the compensable injury. Paul Bachwitt, M.D., then
evaluated Ms. Pruitt and determined there were no clinical findings of lumbar radiculopathy.
David Abramowitz, M.D., also reviewed Ms. Pruitt’s records. He found that the initial MRI
taken in this case was of good diagnostic quality and it revealed no evidence of disc herniation at
any level. Following these evaluations, Ms. Pruitt’s treating physician, Abed Koja, M.D.,
requested that herniated lumbar disc and radiculopathy be added as compensable conditions of
the claim. Dr. Koja’s request was submitted to Randall Short, D.O., who recommended against
including the diagnoses as part of the claim because he believed they were related to a natural
progression of Ms. Pruitt’s degenerative condition. Dr. Short pointed out that the initial
diagnostic studies in this case revealed the presence of degenerative changes and a broad-based
disc bulge which were not causally related to an acute injury. On March 26, 2012, the claims
administrator denied Dr. Koja’s request to add lumbar disc herniation and radiculopathy as
compensable conditions of the claim. On October 2, 2012, the Office of Judges affirmed the
claims administrator’s decision. The Board of Review affirmed the Order of the Office of Judges
on March 22, 2013, leading Ms. Pruitt to appeal.

        The Office of Judges concluded that the denial of the additional diagnoses should be
affirmed. The Office of Judges determined that Ms. Pruitt’s L4-5 disc herniation was the result
of non-compensable degenerative changes and not the compensable injury. It found that the
causal connection between the compensable injury and her herniated disc was tenuous because
the April 15, 2009, MRI, taken a month after the compensable injury, revealed no disc
herniations. The Office of Judges pointed out that the L4-5 disc herniation was not evident until
over a year after the date of injury. The Office of Judges also pointed out that Dr. Thaxton, Dr.
Short, and Dr. Bachwitt all indicated that Ms. Pruitt’s L4-5 disc herniation was related to the
progression of her pre-existing degenerative condition. The Office of Judges found that the
diagnosis of radiculopathy was also not related to the compensable injury. The Office of Judges
determined that there were no clinical findings of radiculopathy and Ms. Pruitt’s symptoms were
not consistent with the diagnosis. 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. Ms. Pruitt has not demonstrated that the diagnoses of lumbar disc herniation and
radiculopathy are causally related to the compensable injury. The evidence in the record does not
demonstrate that Ms. Pruitt received these conditions in the course of and resulting from her
employment. The medical evidence in the record, especially the April 15, 2009, MRI, indicates
that Ms. Pruitt’s lumbar disc herniation and radiculopathy are related to her pre-existing
degenerative spinal condition. In a prior appeal, this Court has already affirmed a denial of Ms.
Pruitt’s request to add a similar condition, displacement of lumbar intervertebral disc, as a
compensable condition of the claim. Pruitt v. McDowell Cnty. Bd. of Educ., No. 12-1144, 2014
WL 185513 (Jan. 14, 2014). Ms. Pruitt has not presented sufficient evidence distinguishing her
current request from the appeal that this Court has already considered. There is nothing in the
record undermining the credibility of Dr. Thaxton’s, Dr. Short’s, and Dr. Bachwitt’s reports. The
Office of Judges was within its discretion in relying on their opinions.
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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: August 13, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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