                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

AUGUSTINE CORTEZ,                                                                   FILED
Claimant Below, Petitioner                                                       October 10, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.)   No. 16-1186 (BOR Appeal No.20051380)                                      OF WEST VIRGINIA

                    (Claim No. 2012021279 )

LOWE’S HOME CENTERS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Augustine Cortez, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Lowe’s Home Centers, Inc., by James
Heslep, its attorney, filed a timely response.

       The issue on appeal is the permanent partial disability award. On December 9, 2014, the
claims administrator granted 0% permanent partial disability. The Office of Judges affirmed the
claims administrator in its June 16, 2016, Order. The Order was affirmed by the Board of
Review on November 21, 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 and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Cortez, a flooring specialist, injured his low back on December 31, 2011, when he
was moving boxes of laminated flooring. The claim was originally held compensable for a
lumbar sprain/strain on January 10, 2012. On May 8, 2012, Mr. Cortez underwent an L2-L3
anterior lumbar interbody fusion on the diagnosis of L2-L3 herniated nucleus pulposus and
spondylolisthesis. In addition to the fusion, the procedure included anterior interbody cage and
pedicles screws, including removal of old hardware at L3 and L5 and replacement with new
hardware. On April 1, 2013, the Office of Judges held the claim compensable for the additional



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diagnoses of herniated disc/intervertebral disc disorders and a retrolisthesis(spondylolisthesis) of
L2 on L3.1

        ChuanFang Jin, M.D., performed an independent medical evaluation on January 14,
2014. Mr. Cortez told Dr. Jin he was injured on December 31, 2011, when he was restacking
boxes that had fallen onto a skid. The boxes weighed about forty pounds each. As he was picking
up the boxes, he twisted and while doing this, he felt a sudden, sharp pain in his lumbar spine
and his right leg went numb. He received emergent treatment that day, and was referred to James
Chadduck, M.D. Dr. Chadduck performed an L2-L3 fusion surgery in May of 2012 and then a
surgery to remove the hardware from the fusion in May of 2013. Mr. Cortez advised his leg
problems were completely resolved after the surgery, although he continued to have constant
lower back pain. Dr. Jin noted Mr. Cortez had undergone a total of five surgeries on his lumbar
spine, including L2-L3 and L4-L5 laminectomies in 2001 and 2002; an L3-L4 and L4-L5 fusion
in 2004; the 2012 lumbar fusion; and the 2013 hardware removal. Dr. Jin diagnosed history of
previous lumbar spine injury and multiple lumbar spine disc surgeries, including laminectomy,
discectomy and multiple level fusion from L3 through L5; history of probable mechanical back
injury in December of 2011 with a diagnosis of lumbar sprain/strain under the claim; and pre­
existing chronic degenerative lumbar disk disease. Dr. Jin completed the Low Back Examination
Questionnaire as a part of her evaluation of the claimant.

        On March 5, 2014, Dr. Jin prepared a supplemental report regarding her January 14,
2014, evaluation of Mr. Cortez. Dr. Jin assessed 19% whole person impairment. She then
referred to the West Virginia Code of State Rules and adjusted the whole person impairment
according to Rule 20. She placed Mr. Cortez in lumbar Category IV of Table 85-20-C and
assessed 20% whole person impairment. She noted Mr. Cortez had a previous lumbar fusion at
L3-L4 and L4-L5, and therefore the pre-existing impairment had to be apportioned. She opined
Mr. Cortez would have had 20% whole person impairment due to the prior fusion. Therefore, he
had no additional impairment due to the 2012 fusion. She assessed 0% impairment due to the
December 31, 2011, injury.

        Christopher Martin, M.D., performed an independent medical evaluation of Mr. Cortez
on October 13, 2014. Mr. Cortez provided Dr. Martin with the same injury and medical histories
that he had provided Dr. Jin. Dr. Martin noted Mr. Cortez had undergone a total of five surgeries
on his lumbar spine, including L2-L3 and L4-L5 laminectomies in 2001 and 2002 and then an
L3-L4 and L4-L5 fusion in 2004. In Dr. Martin’s opinion, Mr. Cortez experienced a lumbar
strain/sprain type injury on December 31, 2011. Dr. Martin also diagnosed spondylolisthesis, but
opined it was not related to the work injury. Dr. Martin assessed 19% whole person impairment.
He then referred to the West Virginia Codes of State Rules and adjusted the whole person
impairment according to Rule 20. He placed Mr. Cortez in the lumbar Category IV of Table 85­

1
  In Lowe’s Home Centers, Inc. v. Augustine Cortez No. 13-1075 (W.Va. Supreme Court of
Appeals, December 2, 2014)(memorandum decision), we affirmed the addition of herniated,
retrolisthesis, and intervertebral disc disorder as compensable conditions and affirmed the
authorization of fusion surgery.
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20-C and assessed 20% whole person impairment based on the lumbar fusion. Dr. Martin
completed the Low Back Examination Questionnaire as part of his evaluation.

       On December 3, 2014, Dr. Martin completed a supplemental report regarding his October
13, 2014, evaluation of Mr. Cortez. Dr. Martin apportioned the entire 20% impairment to Mr.
Cortez’s prior two level fusion. He opined that Mr. Cortez had 0% whole person impairment
with respect to the work-related injury. On December 9, 2014, the claims administrator granted
0% permanent partial disability based on Dr. Martin’s evaluation and reports.

        Joseph A. Snead, M.D., performed an independent medical evaluation on September 9,
2015. Mr. Cortez provided Dr. Snead with the same injury and medical history as he did to Dr.
Jin and Dr. Martin. Dr. Snead’s diagnosis was status postoperative spine fusion for L2-L3 disc
herniation. Dr. Snead assessed 23% whole person impairment. He attributed the entire
impairment to the most recent injury since Mr. Cortez had returned to work after the first fusion
surgery in 2004. Dr. Snead did not complete the Low Back Examination Questionnaire as part of
his evaluation.

        The Office of Judges affirmed the claims administrator’s award of 0% permanent partial
disability in its June 16, 2016, Order. It noted that Dr. Jin, Dr. Martin, and Dr. Snead assessed
Mr. Cortez’s permanent impairment. Dr. Jin and Dr. Martin assessed 0% impairment for the
December 31, 2011, work injury. Dr. Snead assessed 23% WPI due to the work injury. The
Office of Judges found that Dr. Snead failed to include the low back form with his evaluation.
This is required by West Virginia Code of State Rules §85-20. Both Dr. Jin and Dr. Martin
included the required form with their evaluations. The Office of Judges also found that Dr. Snead
did not consider Mr. Cortez’s prior injuries and resulting surgeries in arriving at his assessment
of 23% whole person impairment. West Virginia Code of State Rules §85-20-66.4 (2006) states
“to the extent that factors other than the compensable injury may be affecting the injured
worker’s whole body medical impairment, the opinion stated in the report must, to the extent
medically possible, determine the contribution of those other impairments whether resulting from
an occupational or a nonoccupational injury, disease, or other cause.” As Dr. Snead failed to
include the low back form evaluation, and failed to consider the claimant’s prior injuries and
surgeries, the Office of Judges found his report unreliable. Therefore, it relied on the opinion of
Dr. Martin, who assessed 0% whole person impairment. It found his report to be the most
credible. Dr. Martin evaluated Mr. Cortez after the additional compensable conditions were
added, he included the low back form with his evaluation, and he took into account the factors
other than the compensable injury that affected the whole person impairment.

        In its November 21, 2016, decision the Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges. After review, we agree with the Board of Review.
The Office of Judges properly weighed the evidence and found Dr. Martin’s opinion to be the
most credible. The impairment resulting from the first injury and surgery “shall not be taken into
consideration in fixing the amount of compensation allowed by reason of the subsequent injury”.
See West Virginia Code §23-4-9(b) (2006) Moreover, the degree of pre-existing impairment does
not have to be “definitely ascertained or rated prior to the injury received in the course of and
resulting from the employee’s employment “ and “the degree of the pre-existing impairment may
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be established at any time by competent medical or other evidence.” Id. Dr. Martin evaluated
Mr. Cortez after the additional compensable conditions were added, he included the low back
form with his evaluation report, and he properly addressed the impairment that resulted from the
first fusion surgery. The Office of Judges reliance on his opinion was not misguided.

        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: October 10, 2017


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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