                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
BETTY BOOTH,                                                                        May 7, 2018

Claimant Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


vs.)   No. 17-1140 (BOR Appeal No. 2052121)
                   (Claim No. 2009061183)

WEST VIRGINIA UNITED HEALTH SYSTEMS,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Betty Booth, by Robert L. Stultz, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. West Virginia United Health Systems, by
Steven K. Wellman, its attorney, filed a timely response.

       The issue on appeal is whether Ms. Booth is entitled a reopening of her case for
additional permanent partial disability consideration. The claims administrator denied a
reopening on March 10, 2017. The Office of Judges reversed the decision in its July 27, 2017,
Order and reopened the claim. The Order was reversed by the Board of Review on December 1,
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.

       Ms. Booth, a registered nurse, was injured in the course of her employment on
September 4, 2008, when she bent over to start an intravenous line and felt pain in her lower
back. Lumbar x-rays taken on September 9, 2008, showed mild endplate degenerative
osteophytes from L3 to L5. There were no fractures noted and facet joints and disc space heights
were normal. In a treatment note that day, Dr. Bowers stated that Ms. Booth presented with
lower back pain that went down the left leg. He assessed lumbar sprain. An MRI taken on
September 21, 2008, showed a moderate sized L2-3 herniated disc impinging on the L2 nerve

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root. The claim was held compensable for displacement of thoracic or lumbar intervertebral disc
without myelopathy on October 5, 2008.

       In a treatment note dated January 7, 2010, Vincent Miele, M.D., stated that Ms. Booth’s
repeat MRI showed excellent improvement in the L2-3 disc herniation. A lumbar MRI taken on
September 30, 2011, revealed facet arthropathy at multiple levels with disc bulging and
osteophyte formation. There was no evidence of focal disc herniation but there was bilateral
foraminal stenosis at L2-4 and a mild disc bulge at L5-S1.

        ChuanFang Jin, M.D., performed an independent medical evaluation of Ms. Booth on
October 20, 2011. Dr. Jin diagnosed history of lumbar sprain/strain, degenerative lumbar disc
disease as evidenced on MRI, and probable left lower extremity radiculopathy. Dr. Jin noted that
there had been no trauma to the spine, as Ms. Booth was injured by merely leaning over. She
opined that the degenerative disc disease was not caused by the compensable injury but was
likely a preexisting condition. Degeneration is slow and can take years to show on x-rays or
MRIs. Dr. Jin opined that a regular motion, such as leaning over, will not cause or accelerate
degeneration, and the MRI findings are consistent with degenerative changes rather than trauma.
Dr. Jin noted that Ms. Booth had a disc herniation at L2-3 which had healed, as seen on
subsequent MRIs. She further noted that Ms. Booth’s symptoms did not improve after the L2-3
disc healed, indicating her symptoms are the result of a different condition. Dr. Jin found that
there should be no further treatment for the lumbar sprain/strain. Ms. Booth had reached
maximum medical improvement and Dr. Jin assessed 11% impairment but apportioned 6% to
preexisting conditions and only 5% to the compensable injury. Ms. Booth was granted a 5%
permanent partial disability award on December 5, 2011.

       In a June 26, 2013, record review, Dr. Jin opined that the degenerative changes seen at
L5-S1 are not the result of the compensable injury. There was no evidence of trauma to the
spine. She noted that Dr. Bowers testified in a deposition that the preexisting degenerative
changes seen on the first MRI were preexisting changes and it was impossible to conclude that
the compensable injury could have caused degeneration.1 Dr. Jin concluded that it is impossible
to conclude that the injury aggravated the underlying degenerative disease given than there was
no mechanical injury.

       On October 13, 2016, Karl Boone, D.C., performed an independent medical evaluation in
which he noted a diagnosis of displacement of lumbar disc without myelopathy. He opined that
Ms. Booth had 8% impairment under Table 75 of the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (4th ed. 1993), 7% for range of motion loss, and 2% for
sensory deficits. The combined total of 16% was reduced per West Virginia Code of State Rules
§ 85-20-C (2006). On October 24, 2016, Ms. Booth requested that her claim be reopened and
submitted Dr. Boone’s report in support.

       Dr. Jin performed an independent medical evaluation on February 20, 2017, in which she
found that Ms. Booth’s chronic lower back pain is the result of degenerative discs. There was

1
    Dr. Bower’s deposition transcript was not submitted.
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insufficient evidence to support an injury to the spine. Dr. Jin concluded that Ms. Booth’s
symptoms are due to the natural progression of her preexisting disease. Ms. Booth had reached
maximum medical improvement for her lumbar sprain. Dr. Jin assessed 20% impairment and
found that 5% was due to the compensable injury.

        The claims administrator denied a reopening of the claim for permanent partial disability
consideration on March 10, 2017. The Office of Judges reversed the decision in its July 27, 2017,
Order. It found that the threshold for reopening is low. A claimant merely needs to show that
evidence that would tend to justify, but not compel, the inference that the injury has progressed
or suffered an aggravation. The Office of Judges concluded that Ms. Booth met this burden with
the report of Dr. Boone who found 13% impairment. The Board of Review reversed the Office of
Judges’ Order on December 1, 2017. It found that Ms. Booth requested that disc herniation and
nerve impingement be added to the claim and the claims administrator denied the request. That
decision was affirmed by the Office of Judges, Board of Review, and this Court. The Board of
Review found in this case that the evidence of record, including Ms. Booth’s testimony, does not
disclose facts that tend to show that a progression or aggravation of the compensable injury has
occurred. Dr. Boone’s impairment rating was found to include a non-compensable condition, and
he failed to apportion between the compensable and noncompensable conditions.

        After review, we agree with the reasoning and conclusions of the Board of Review. Ms.
Booth suffered a lumbar sprain/strain and a lumbar disc herniation as a result of her compensable
injury. The disc herniation healed, as seen on subsequent MRIs. Dr. Jin took this into
consideration when she performed her two independent medical evaluations. Dr. Boone’s
evaluation showed no evidence that the compensable injury had progressed or suffered an
aggravation. He also failed to distinguish his findings between compensable and
noncompensable conditions. Ms. Booth therefore failed to meet her burden of proof to show a
progression or aggravation of her compensable injury that would justify reopening her claim.

        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: May 7, 2018

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

DISSENTING:
Justice Menis E. Ketchum

Justice Elizabeth D. Walker, disqualified
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