                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

JAMIE LUCAS,
                                                                                        FILED
Claimant Below, Petitioner                                                             June 26, 2020
                                                                                 EDYTHE NASH GAISER, CLERK

vs.)   No. 19-0393 (BOR Appeal No. 2053450)                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
                   (Claim No. 2016005543)

PATRIOT COAL CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Jamie Lucas, by Counsel John H. Shumate Jr., appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Patriot Coal
Corporation, by Counsel Henry C. Bowen and James W. Heslep, filed a timely response.

       The issue on appeal is additional compensable conditions. The claims administrator denied
the addition of cervical intervertebral disc disorder with myelopathy and lumbar disc disorder with
myelopathy to the claim on February 27, 2018. The Office of Judges affirmed the decision in its
September 26, 2018, Order. The Order was affirmed by the Board of Review on March 22, 2019.

        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 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. Lucas, an underground mining foreman, was injured in the course of his employment
on August 20, 2015, when a rock fell in the mine and pinned him to a coal rib. The Employees’
and Physicians’ Report of Injury, completed that day, indicates Mr. Lucas was treated at Raleigh
General Hospital and diagnosed with concussion with loss of consciousness and lumbar contusion.
An x-ray showed no evidence of fracture or dislocation in the thoracic or lumbar spine. A cervical
CT scan showed no acute findings. A brain CT scan showed no acute findings. A second
Employees’ and Physicians’ Report of Injury was completed on August 23, 2015, at MedExpress.
The diagnoses were listed as intercranial injury, unspecified respiratory condition, headache,

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lumbar sprain, and neck sprain. The claim was held compensable for head concussion, cervical
strain, thoracic strain, and lumbar strain on August 31, 2015.

        A lumbar CT scan was performed on September 2, 2015 and showed no acute findings.
Mr. Lucas sought treatment from Barry Vaught, M.D., on October 27, 2015. The treatment note
indicates diagnoses of cervical radiculopathy, bilateral carpal tunnel syndrome, and post-
concussion syndrome. An EMG performed in office that day showed moderate bilateral carpal
tunnel syndrome as well as evidence of C5-6 radiculopathy. A cervical MRI was performed on
November 23, 2015, and revealed no disc protrusions, canal stenosis, or neural foraminal stenosis.

        On December 17, 2015, Mr. Lucas sought treatment from John Orphanos, M.D., his
treating physician. Mr. Lucas reported bilateral hand and leg numbness and tingling. The diagnoses
were hand paresthesia, low back pain, and neck pain. Dr. Orphanos recommended conservative
treatment since the MRI showed nothing that would be causing neck or radicular pain.

        A.E. Landis, M.D., performed an independent medical evaluation on January 18, 2016, in
which he diagnosed cervical and lumbar contusion/strain/sprain type injuries. He noted that the
compensable conditions in the claim are head concussion, cervical strain, thoracic strain, and
lumbar strain. Dr. Landis opined that the EMG showed radiculopathy, which does not correlate
with clinical findings. He also opined that the MRI showing an L5-S1 disc herniation also does
not correlate with clinical findings. Dr. Landis recommended that Mr. Lucas undergo an aggressive
physical therapy regiment for four to six weeks and then an aggressive work-conditioning
program. He found that at the time of the evaluation, Mr. Lucas was capable of working modified
duty. Dr. Landis opined that Mr. Lucas had not yet reached maximum medical improvement but
would shortly after his rehabilitation programs.

        Mr. Lucas returned to Dr. Orphanos on February 2, 2016. Dr. Orphanos noted that a lumbar
MRI showed degenerative disc disease and lumbar spondylosis. There was a small L5-S1 disc
herniation. Dr. Orphanos diagnosed low back pain and neck pain. On May 10, 2016, Mr. Lucas
was treated by Andrew Thymius, M.D., who diagnosed lumbar sprain, lumbosacral radiculopathy,
and lumbar disc displacement.

        On May 16, 2016, Dr. Landis performed a second independent medical evaluation in which
he reiterated his diagnoses of cervical and lumbar contusions/sprains. He found some evidence of
symptom magnification given that Mr. Lucas’s clinical findings were not consistent with his
reported symptoms. Dr. Landis opined that Mr. Lucas had reached maximum medical
improvement and assessed 10% whole person impairment using West Virginia Code of State Rules
§ 85-20. Dr. Landis was unable to use the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993), because the range of motion studies were
invalid due to voluntary guarding.

       In a June 3, 2016, addendum, Dr. Landis stated that he was asked to determine if Mr. Lucas
could return to work. Dr. Landis opined that Mr. Lucas would be unable to return to work due to
his symptom magnification. He strongly suggested a functional capacity evaluation to determine
what level of work Mr. Lucas could perform but noted that it would likely be difficult to get an
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accurate understanding of his functional level. Dr. Landis stated that if he had to assign a level of
functioning, it would be sedentary due purely to psychological reasons.

        Dr. Vaught performed a neurological examination on June 8, 2016, in which he assessed
cervical radiculopathy, post-concussion syndrome, carpal tunnel syndrome, paresthesia of the skin,
and memory loss. Dr. Vaught recommended a lower extremity EMG and a referral to
neuropsychology. Mr. Lucas was granted a 10% permanent partial disability award on June 16,
2016. On June 21, 2016, Dr. Thymius noted that Mr. Lucas reported 70% pain relief following
cervical epidural steroid injections. Mr. Lucas also stated that his back pain is worse and requested
referral to a surgeon. Dr. Thymius assessed lumbosacral intervertebral disc displacement and
cervical disc disorder with radiculopathy.

        In a July 1, 2016, treatment note, Syed Zahir, M.D., diagnosed chronic neck and back pain
with radiculopathy. He did not believe Mr. Lucas had reached maximum medical improvement.
Dr. Zahir recommended that Mr. Lucas see a neurosurgeon as well as a neuropsychiatrist. On
August 19, 2016, Mr. Lucas reported continued pain in his neck, arms, and legs. The impression
remained chronic neck and back pain with radiculopathy in both arms and legs. Dr. Zahir opined
that Mr. Lucas needed to see a surgeon. On September 20, 2016, Dr. Zahir noted that Mr. Lucas
had been trying to lose weight to alleviate some of his pain. He opined that Mr. Lucas was unable
to do any type of gainful work. The diagnoses remained the same.

        Dr. Zahir completed a diagnosis update on February 10, 2016, in which it was noted that
Mr. Lucas was experiencing numbness and weakness in his neck, lumbar spine, and extremities.
Dr. Zahir noted that a MRIs showed a disc protrusion at L5-S1, loss of normal cervical lordosis,
bilateral foraminal stenosis with a disc bulge at C5-6, and cervical facet changes from C4-C6. He
requested the addition of cervical intervertebral disc disorder with myelopathy and lumbar disc
disorder with myelopathy to the claim.

        On March 6, 2017, Dr. Landis performed an independent medical evaluation in which he
noted that he had reviewed additional records since Mr. Lucas’s last evaluation. Dr. Landis again
diagnosed contusion/sprain of the cervical and lumbar spine. He noted that since the compensable
injury, Mr. Lucas has developed significant psychological issues and was diagnosed with post-
traumatic stress disorder. Dr. Landis stated that he disagrees with Dr. Zahir that Mr. Lucas needs
referral to a neurosurgeon. He stated that Mr. Lucas would have to be treated for his severe
psychiatric condition, reduce his weight by at least 150 pounds, quit smoking, and get his diabetes
under control to even qualify for surgery. Dr. Landis opined that Mr. Lucas’s most significant
impairment is for his psychological issues. He assessed 5% cervical impairment and 5% lumbar
impairment.

       Saghir Mir, M.D., performed an independent medical evaluation on June 30, 2017, in
which he diagnosed cervical strain, resolved thoracic strain, lumbosacral strain superimposed on
pre-existing degenerative changes, and mild headaches due to cerebral concussion. Dr. Mir agreed
with Dr. Landis that Mr. Lucas had reached maximum medical improvement for his compensable
conditions. Dr. Mir assessed 5% cervical impairment, 5% lumbar impairment, 0% thoracic
impairment, and 2% impairment for residual headaches. Dr. Mir recommended no additional
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treatment. Dr. Mir noted that Mr. Lucas has significant functional and psychological overlay with
symptoms magnification. He also has significantly over-exaggerated symptoms and his range of
motion measurements are not valid. Dr. Mir opined that from an orthopedic standpoint, Mr. Lucas
could return to full duty work; however, he required authorization from a psychiatrist before he
could return to work.

        The claims administrator denied the addition of cervical intervertebral disc disorder with
myelopathy and lumbar disc disorder with myelopathy to the claim on February 27, 2018. The
Office of Judges affirmed the decision in its September 26, 2018. Order. It found that the claim
has been held compensable for head concussion, cervical strain, thoracic strain, and lumbar strain.
The Office of Judges determined that the treatment records of Dr. Orphanos indicates Mr. Lucas’s
MRI showed lumbar degenerative disc disease and spondylosis. There was a small central disc
herniation which was described as not impressive but otherwise, there were no acute findings. The
Office of Judges noted that Mr. Lucas was awarded a 10% permanent partial disability award for
his compensable injuries. It also noted that decisions denying additional medical treatment were
affirmed by the Board of Review. Further, this Court affirmed denial of referral to a neurosurgeon
and noted that Mr. Lucas has degenerative disc disease and spondylosis, both of which are
preexisting conditions. The Office of Judges concluded that Mr. Lucas had reached maximum
medical improvement for his compensable injuries, as found in reports by Drs. Landis and
Orphanos. The Office of Judges further concluded that Mr. Lucas’s current symptoms are not the
result of the compensable injury and instead originate from preexisting degenerative conditions.
Therefore, the Office of Judges determined that the requested conditions should not be added to
the claim. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order on March 22, 2019.

        After review, we agree with the decision of the Board of Review. For an injury to be
compensable it must be a personal injury that was received in the course of employment, and it
must have resulted from that employment. See Barnett v. State Workmen’s Compensation
Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970). Mr. Lucas failed to show that cervical
intervertebral disc disorder with myelopathy and lumbar disc disorder with myelopathy resulted
from the compensable injury. Imaging scans indicate the presence of degenerative changes in the
cervical and lumbar spines. Drs. Landis and Mir both opined that Mr. Lucas has degenerative
changes and that he has reached maximum medical improvement for his compensable injury. The
denial of the addition of cervical intervertebral disc disorder with myelopathy and lumbar disc
disorder with myelopathy to the claim is therefore 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.

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ISSUED: June 26, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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