                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

RONNIE D. HUFFMAN,                                                                  FILED
                                                                                   June 22, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 15-0621 (BOR Appeal No. 2050046)
                   (Claim No. 2012002438)

MERCER COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Ronnie D. Huffman, by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Mercer County Board of
Education, by Jillian L. Moore, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 20, 2015, in which
the Board affirmed a November 24, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 15, 2013,
decision to deny authorization for bilateral lumbar facet injections. The Office of Judges also
affirmed the claims administrator’s January 16, 2014, decision to deny authorization for a
neurosurgical consultation. Lastly, the Office of Judges affirmed the claims administrator’s April
1, 2014, decision to deny the addition of herniated invertebral disc at L5-S1 as a compensable
condition of the claim.

       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. Huffman, an employee of the Mercer County Board of Education, was tearing out an
asphalt walkway, picking up pieces of asphalt, and placing them into a bucket loader on July 5,
2011, when he experienced a sharp pain in his lower back. An x-ray performed the next day
revealed no fracture. On July 19, 2011, Mr. Huffman was seen by Richard Shorter, D.O., for a
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follow-up. Mr. Huffman reported that his symptoms since the last visit had increased in the right
paravertebral region and was worse in the morning or with exercise. Mr. Huffman was diagnosed
with lumbar strain and lumbar disc degeneration. On July 23, 2011, Mr. Huffman underwent a
lumbar MRI which revealed bulging discs and degenerative changes at L4-5 and L5-S1. There
was no evidence of disc herniation or other intra or extradural masses. X-rays of the dorsal spine
revealed osteoporosis. There was no evidence of an acute displaced fracture.

        Christopher Kim, M.D., examined Mr. Huffman following his right C3-C6
radiofrequency ablation, which was performed on July 29, 2011. Mr. Huffman reported that the
radiofrequency ablation helped but he was still having pain in the side of his neck. It was noted
that he was undergoing physical therapy for his neck pain. Dr. Kim diagnosed a neck strain and
cervical disc degeneration. The claims administrator held the claim compensable for lumbosacral
sprain and overextension from a strenuous movement on August 8, 2011. On November 10,
2011, Mr. Huffman was treated by Dr. Kim for low back pain. Mr. Huffman reported that the
pain radiated across his lower back. The pain was described as constant, aching, and occasionally
sharp. Dr. Kim examined Mr. Huffman and diagnosed a sprained lumbosacral joint. He
requested approval for bilateral lumbar medial branch blocks. He also recommended physical
therapy if the pain increased or did not improve. In December of 2011, Dr. Kim diagnosed a
lumbar sprain and a bulging lumbar disc. Mr. Huffman received a corticosteroid injection
bilaterally into his lower spine on that date and then twice more in the following month.

       On February 9, 2012, Dr. Kim recommended Mr. Huffman use ice and heat and continue
with a home exercise program. Dr. Kim requested approval for injection/radiofrequency for the
lumbar spine. On March 8, 2012, Prasadarao Mukkamala, M.D., performed a physician review
regarding Dr. Kim’s request for bilateral lumbar radiofrequency ablation. Dr. Mukkamala
recommended that the request be denied because it addressed non-compensable conditions. He
noted that the only accepted condition was a lumbosacral sprain, which should have already
resolved. Dr. Mukkamala opined that any further need for treatment was not attributable to the
compensable injury.

        On April 12, 2012, Dr. Kim referred Mr. Huffman to John Orphanos, M.D., for a surgical
evaluation. Dr. Kim also administered nerve ablation in the lumbar spine on July 11, 2012. In
November of 2012, Mr. Huffman reported the injections helped, but the pain was now getting
worse. Dr. Kim scheduled Mr. Huffman for radiofrequency ablation of bilateral lumbar facet
joints and opined that further physical therapy would be of benefit.

       Rayed Almanei, M.D., and Randall Short, D.O., completed a physicians’ review on
March 19, 2013, addressing a request for Cymbalta. The doctors recommended the medication
be denied. The doctors concluded that Mr. Huffman’s diagnosis of chronic low back pain is a
non-compensable condition. They stated it has been eighty-eight weeks since the date of injury,
and his continuing low back pain is mostly due to degenerative changes, not the compensable
lumbosacral sprain.

       In a physician review completed on May 17, 2013, James Dauphin, M.D., recommended
denying the request for a repeat radiofrequency ablation and for physical therapy. Dr. Dauphin
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noted that the claim was reviewed by Dr. Almanei and Dr. Short in March of 2013. The doctors
recommended denying the request for Cymbalta and for any other treatment or visits unless
related to the accepted diagnosis in the claim, which is lumbar sprain. Dr. Dauphin stated nothing
has changed since that review.

        On June 27, 2013, a physician review was completed by Rebecca Thaxton, M.D.,
regarding the request for lumbar facet injections bilaterally from L3 to S1. Dr. Thaxton reviewed
the medical records and recommended that payment be denied. She stated the treatment was
indicated due to pre-existing lumbar degeneration. On August 13, 2013, the claims administrator
denied Mr. Huffman’s request for bilateral lumbar facet joint injections.

        On August 20, 2013, Dr. Kim stated Mr. Huffman may have to consider back surgery
since conservative treatment options were denied. Dr. Kim diagnosed cervical spondylosis with
myelopathy. He requested approval for injection/radiofrequency ablation for the right cervical
spine and facet joint injections at C3-6. Jerry Scott, M.D., evaluated Mr. Huffman on November
12, 2013, and found that treatment beyond the first few weeks has not been medically necessary
and appropriate because it was not related to the compensable injury. He opined Mr. Huffman’s
treatment has been excessive. He further stated that any additional treatment would be for Mr.
Huffman’s chronic and pre-existing degenerative disease, which was well established at the time
of the compensable injury. Dr. Scott opined that Mr. Huffman had reached maximum medical
improvement and suffered from 6% whole person impairment.

        On December 12, 2013, Mr. Huffman went to the Emergency Department at Princeton
Community Hospital with a chief complaint of back pain. He reported a history of back injury in
a motor vehicle crash. Mr. Huffman stated that he rolled over in bed two weeks prior, and he has
had extreme right back pain that radiates down his hip, through his glute and down to his foot.
An MRI revealed an increased grade 1 retrolisthesis of L5 on S1 with increased disc space
narrowing. There was desiccated disc signal change. There was a right foraminal focal disc
protrusion, bilateral posterior element hypertrophy, and increased right foraminal narrowing.
There was also mild left foraminal narrowing and degenerative endplate signal changes, a little
worse than previous. At L4-5 there was mild right foraminal narrowing, worse than the left as
comparable to previous studies.

       On December 6, 2013, Dr. Shorter requested approval for a neurosurgical consultation.
On December 11, 2013, the claims administrator denied the request for a neurosurgical
consultation. On December 12, 2013, the claims administrator granted Mr. Huffman a 6%
permanent partial disability award in accordance with Dr. Scott’s findings. On December 20,
2013, John H. Schmidt III, M.D., examined Mr. Huffman and recommended a lumbar
laminectomy and removal of a disc fragment at L5-S1.

        On the January 16, 2014, the claims administrator denied a request for a neurosurgical
consultation. On February 3, 2014, Dr. Shorter requested the addition of a herniated
intervertebral disc to the claim. Dr. Shorter stated that he believed the recent MRI findings relate
to the progression of disc disease from the original injury, possibly aggravated by activities of
the November 11, 2013, independent medical evaluation.
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        On February 11, 2014, Mr. Huffman underwent a right L5-S1 semilaminectomy and
removal of a ruptured disc. It was noted Mr. Huffman had a history of severe right hip and
radiating leg pain. He failed conservative efforts and an MRI demonstrated the presence of a free
fragment of ruptured disc into the foramen on the right at L5-S1. On April 4, 2014, the claims
administrator denied the request from Dr. Shorter for the addition of herniated intervertebral disc
at L5-S1.

        On July 20, 2014, a letter from Dr. Shorter addressed the denial of a herniated
intervertebral disc at L5-S1. He noted that Mr. Huffman has undergone multiple MRIs of the
lumbar spine with the initial MRI of July 23, 2011, revealing bulging discs and degenerative
changes at L4-5 and L5-S1 without evidence of disc herniation. A second MRI revealed a L5-S1
foraminal focal disc protrusion, which was felt to be worse than noted on the previous
examination. It was determined that the MRI findings and worsening of Mr. Huffman’s clinical
condition, which occurred in mid-November of 2013, were not related to the compensable injury.
Dr. Shorter asserted that Mr. Huffman suffered an injury on July 5, 2011, which caused
persistent low back pain with intermittent radiation into the right leg consistent with irritation of
the right S1 nerve root. Dr. Shorter stated the initial MRI did not demonstrate frank disc
herniation but did note bulging discs. Dr. Shorter believed the damage sustained in the original
injury continued to progress to the point where Mr. Huffman experienced frank disc herniation,
which was subsequently demonstrated on the second MRI.

        On June 27, 2014, Dr. Kim diagnosed lumbar spondylosis with myelopathy. Mr.
Huffman underwent lumbar radiofrequency ablation. On July 21, 2014, Syam B. Stoll, M.D.,
examined Mr. Huffman and reviewed the available medical records. Dr. Stoll diagnosed lumbar
sprain/strain and opined that he did not suffer a herniated disc or nerve root impingement. He
therefore did not need neurosurgical intervention. This was especially so because he was at
maximum medical improvement. Dr. Stoll stated he agreed with the findings of Dr. Thaxton that
the facet joint injections are clearly aimed at treating lumbar facet arthropathy, which would not
have been caused by the compensable injury in this claim. Dr. Stoll stated that the independent
medical evaluation by Dr. Scott did not cause or worsen Mr. Huffman’s back pain or right lower
extremity radiculopathy, which he reportedly manifested five days after the independent medical
evaluation. Dr. Stoll found that ongoing treatment of Mr. Huffman with bilateral lumbar facet
joint injections, a neurosurgical consultation, and a request to add herniated intervertebral disc at
L5-S1 to the claim were not appropriate because they were not supported by the medical records
and physical examination.

        On August 19, 2014, Mr. Huffman testified before the Office of Judges that he had never
had a low back injury prior to July 5, 2011. Mr. Huffman testified he was being treated by Dr.
Kim and that Dr. Kim was trying to get injections for his low back. Mr. Huffman testified that he
had surgery in February of 2014, which helped a great deal. Mr. Huffman testified that Dr.
Shorter prescribes the pain medication, Hydrocodone, which helps to relieve his pain depending
on his activity. He further stated that the first radiofrequency ablation managed his pain for about
a year. Mr. Huffman asserted that during that good year, he was still taking the Hydrocodone the

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same as before. Mr. Huffman testified that his back started hurting about five days after he was
examined by Dr. Scott.

        The Office of Judges determined that the disc herniation at L5-S1 was not received in the
course of and as a result of Mr. Huffman’s employment and was a result of his pre-existing
degenerative disc disease in its November 24, 2014, decision. The Office of Judges found that
the opinions of Dr. Thaxton, Dr. Almanei, Dr. Short, Dr. Scott, and Dr. Stoll were persuasive and
showed his herniation was not the result of his injury. In a physician review report dated March
19, 2013, Dr. Almanei and Dr. Short opined that Mr. Huffman’s continuing low back pain was
mostly due to degenerative changes and not to lumbosacral sprain. Dr. Scott found that any
further treatment for Mr. Huffman would be for his chronic and pre-existing degenerative
disease, which Dr. Scott stated was well established at the time of the incident of July 5, 2011.
Dr. Stoll found that ongoing treatment of Mr. Huffman with bilateral lumbar facet joint
injections, a neurosurgical consultation, and the request to add the additional diagnosis of
herniated intervertebral disc at L5-S1 as a secondary compensable condition were not supported
by the medical records and physical examination. It was further the opinion of Dr. Stoll, that the
independent medical examination performed by Dr. Scott on November 12, 2013, did not cause
or worsen Mr. Huffman’s back pain or right lower extremity radiculopathy, which reportedly
manifested five days after the evaluation. Further, Mr. Huffman’s history of low back pain
supported his conclusion. The Office of Judges found his opinion to be persuasive and denied the
requested treatments because they were related to the non-compensable disc herniation. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order on May 20,
2015.

        After review, we agree with the consistent decisions of the Office of Judges and Board of
Review. There was ample medical evidence in the record supporting the conclusion that the disc
herniation at L5-S1 was due to Mr. Huffman’s pre-existing degenerative disc disease as opposed
to the compensable injury. Because the herniation was not a compensable condition, the
treatments requested in relation to it were also properly denied.

        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: June 22, 2016

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