                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                               FILED
PAUL HARRISON,                                                             November 2, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 18-0303 (BOR Appeal No. 2052300)
                   (Claim No. 2016026275)

CITY OF CHARLESTON,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Paul Harrison, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. City of Charleston, by James W.
Heslep, its attorney, filed a timely response.

       The issue on appeal is medical benefits. The claims administrator denied a request for an
evaluation of treatment at a pain clinic on April 5, 2017. The Office of Judges affirmed the
decision in its October 16, 2017, Order. The Order was affirmed by the Board of Review on
March 6, 2018. 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. Harrison, a firefighter and emergency medical technician, was injured in the course
of his employment on April 8, 2016. While transferring a patient from a cot to a bed, Mr.
Harrison felt a pop in his back. The claim was held compensable for lumbar sprain and sprain of
ligaments of the lumbar spine.

        Mr. Harrison has a long history of lumbar spine problems prior to the compensable injury
at issue. A November 25, 2009, lumbar MRI showed a midline disc herniation at L4-5, a small
central and right disc herniation at L5-S1, and degenerative changes from L4-S1. Mr. Harrison
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was treated by Rida Mazagri, M.D., on March 24, 2010, and she noted that he reported constant
back pain for seven months. It radiated into the left hip and thigh. Dr. Mazagri diagnosed back
pain and occasional left leg pain most likely related to his lumbar degenerative disc disease from
L4-S1 with a broad disc bulge at L4-5. She recommended physical therapy and weight loss.

        On December 21, 2010, Melissa Gamponia, M.D., saw Mr. Harrison for a work-related
lower back injury after carrying a patient down icy stairs. He reported pain in his lumbar spine
that radiated into the right hip and both legs. Dr. Gamponia diagnosed chronic low back pain
aggravated by the work-related injury. She noted disc herniations at L4-5 and L5-S1. A lumbar
MRI was performed on January 4, 2011, and showed a progression of the L4-5 disc herniation, a
mild protrusion of L5-S1, and degenerative changes from L4-S1 with mild disc space narrowing
at L5-S1.

        Mr. Harrison returned to Dr. Mazagri on February 16, 2011, and it was noted that he had
suffered a work-related injury on October 7, 2010, which increased his lumbar pain and caused
radiation into both legs and the right hip. Lumbar range of motion was reduced and sensory
evaluation noted decreased sensation in the right foot. Dr. Mazagri recommended surgery for the
L4-5 disc. The surgery was performed by Robert Crow, M.D., on March 25, 2011. On April 25,
2011, Mr. Harrison reported to Dr. Crow that he was happy with the outcome of surgery. He had
complete resolution of the left leg symptoms and a reduction in his back pain; however, he still
had some right extremity symptoms.

       Dr. Gamponia saw Mr. Harrison several times between September of 2011 and May of
2013. During that time, Dr. Gamponia noted that he still suffered from low back and hip pain as
well as right foot numbness. Dr. Gamponia diagnosed low back pain associated with L4-5 and
L5-S1 disc herniations. Between June of 2013 and September of 2015, Mr. Harrison was treated
at
Mountain State Medical Associates for low back pain with numbness. He was diagnosed with
lumbago and sciatica.

       Following the compensable injury at issue, on April 22, 2016, Mr. Harrison underwent a
lumbar MRI. It showed L4-5 and L5-S1 degenerative disc disease; multilevel facet arthropathy;
L4-5 diffuse disc osteophyte complex and protrusion, as well as moderate right and severe left
foraminal stenosis; mild spinal canal stenosis; and L5-S1 osteophyte disc complex with mild
hypertrophy and foraminal stenosis.

         Mr. Harrison followed up with Dr. Crow on May 11, 2016. Dr. Crow noted that he had
constant low back pain and left leg pain, as well as numbness and tingling in the left leg and foot.
Dr. Crow reviewed the recent MRI but opined that without contrast, it was impossible to tell if
the severe left foraminal stenosis was the result of a recurrent disc protrusion or scar tissue from
the previous lumbar disc surgery. Dr. Crow recommend physical therapy. Mr. Harrison returned
on June 1, 2016, and reported that his pain was worsening. Physical therapy had provided no
relief, and he was unable to perform his job duties. A repeat MRI, this time with contrast, was
recommended.

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        The lumbar MRI with contrast was performed on June 27, 2016. It revealed disc base
narrowing, degenerative endplate changes, osteophytes, facet hypertrophy, and a disc herniation
at L4-5, resulting in severe left exit foraminal stenosis and mild spinal canal stenosis. At L5-S1,
it showed a small disc bulge causing moderate right exit foraminal stenosis. The impression was
a progression of the findings at L4-5 resulting in severe left exit foraminal stenosis. Dr. Crow
reviewed the MRI and concluded that it showed scar and fibrosis tissue with no obvious surgical
lesion. On August 2, 2016, Dr. Crow noted that Mr. Harrison had worsening back and leg pain.
He also had paresthesia down both legs and problems with bowel and bladder incontinence. He
walked with a limp. Dr. Crow opined that the MRI showed no significant recurrent disc
herniation, and he felt that Mr. Harrison was not a candidate for surgery. He referred Mr.
Harrison for physical therapy and pain management.

        On September 9, 2016, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation of Mr. Harrison in which he noted that the compensable injury in the claim is a
lumbar sprain. Dr. Mukkamala diagnosed lumbar sprain with a history of L4-5 discectomy. He
did not believe Mr. Harrison required further treatment for the compensable injury. He opined
that the compensable injury was a soft tissue injury. Mr. Harrison’s ongoing complaints are
mostly related to his underlying degenerative spondyloarthropathy. He further opined that the
request for referral to a pain clinic would be for the treatment of the preexisting degenerative
condition, not the compensable injury. Dr. Mukkamala believed that Mr. Harrison needed no
further treatment for the compensable injury. He assessed 13% impairment.

        Mr. Harrison testified in a deposition on March 9, 2017, that he was able to return to full
duty work following his March of 2011 lumbar spine surgery. He alleged that the compensable
injury at issue caused different symptoms than his previous lumbar injury. The first injury caused
low back pain that was worse on the right. The current injury caused left and right leg pain with
weakness in the left leg. Mr. Harrison testified that he retired due to his symptoms. He asserted
that physical therapy and lumbar spine injections provided no relief. He further stated that Dr.
Crow refused to perform a second surgery because the symptoms are due to stenosis caused by
scar tissue, and another surgery may cause further scar tissue. Mr. Harrison testified that after his
2011 surgery he had flair ups of pain but had no treatment for his lumbar spine from 2012 to
2016.

        The claims administrator denied a request for an evaluation of treatment at a pain clinic
on April 5, 2017. The Office of Judges affirmed the decision in its October 16, 2017, Order. It
found that prior to the compensable injury at issue, Mr. Harrison suffered from low back pain
and radiculopathy in both legs since at least August 7, 2009. He underwent lumbar spine surgery
in 2011 and remained symptomatic after the surgery. He was treated by Dr. Gamponia for lower
back and leg pain until at least September 11, 2015, seven months before the compensable
injury. Following the compensable injury at issue, Dr. Crow ordered a new MRI and determined,
based on the results, that Mr. Harrison’s symptoms were the result of scar tissue from the
previous surgery. Further, Mr. Harrison testified that his symptoms after the compensable injury
were different than they were before it. He asserted that prior to the compensable injury, his
symptoms were worse on the right, but after the injury, they were worse on the left. However,
the Office of Judges found that Dr. Mazagri noted radicular symptoms in the left leg on March
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24, 2010. Also, the July 4, 2011, lumbar MRI states that Mr. Harrison had lower back pain with
numbness in the right leg and pain in the left. The Office of Judges therefore concluded that “a
preponderance of the evidence indicates the claimant’s current symptoms are substantially
similar to the symptoms he had before April 8, 2016.” This was supported by Dr. Crow’s
treatment notes, particularly one dated August 3, 2016, in which Dr. Crow opined that Mr.
Harrison had worsening back and bilateral leg pain due to post-laminectomy syndrome caused
by surgery performed prior to the compensable injury at issue. Lastly, the Office of Judges noted
that Dr. Mukkamala performed an independent medical evaluation of Mr. Harrison and
determined that any further treatment would be due to the preexisting degenerative
spondyloarthropathy, not the compensable injury. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its Order on March 6, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence of record shows that Mr. Harrison had largely
the same symptoms after the compensable injury as he did before. Further, his treating surgeon,
opined that his symptoms were the result of scarring caused by the lumbar surgery he had prior
to the compensable injury. His opinion is supported by the MRI and medical evidence of record.

        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: November 2, 2018


CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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