                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDY K. PACK,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1295 (BOR Appeal No. 2048460)
                   (Claim No. 2006020434)

JACKIE WITHROW HOSPITAL,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Randy K. Pack, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Jackie Withrow Hospital, by H. Dill
Battle III, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in
which the Board affirmed a June 4, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 20, 2012,
decision insofar as it denied authorization of a multi-level decompression and fusion at L4-5 and
L5-S1; transforaminal lumbar interbody fusion; and the addition of lumbar disc herniation,
retrolisthesis at L5-S1, lumbar neural foraminal stenosis, and lumbago to the claim. The Office
of Judges modified the claims administrator’s decision to find that lumbar radiculitis is a
compensable component of the claim.1 In its Order, the Office of Judges also affirmed the claims
administrator’s December 11, 2012, decision, which denied a request to reopen the claim for
additional temporary total disability benefits. 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

1
 The decision denying the request to add lumbar disc herniation, retrolisthesis at L5-S1, lumbar
neural foraminal stenosis, and lumbago to the claim and adding lumbar radiculitis as a
compensable component of the claim is not appealed.
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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Pack, a housekeeper, was injured in the course of his employment on September 1,
2005, while moving a hospital bed. The claim was held compensable for lumbar sprain/strain. A
September 11, 2006, CT/myelogram of the lumbar spine showed broad based disc displacement
at L4-5 with neural foraminal recess encroachment bilaterally. There was mild posterior
displacement of the anterior margin of the thecal sac. At L5-S1 there was a broad based disc
extrusion with partial truncation of the nerve root sheath and opacification of the exiting left
nerve root.

        On March 15, 2007, Mohammed Ranavaya, M.D., performed an independent medical
evaluation in which Mr. Pack reported a serious motor vehicle accident in 1981 that caused
multiple fractures of the dorsal spine in the mid and low back. He stated that he returned to work
following his compensable injury but quit working a few weeks later after an unrelated, non­
compensable stomach surgery. He reported that he currently had lower back pain, mostly on the
right side, which radiates into his right hip and leg. He also had numbness in the right leg. Dr.
Ranavaya noted that Mr. Pack had three previous work-related back injuries. He opined that,
given the mechanism of injury, Mr. Pack sustained only a lumbar sprain. Any other damage to
the lumbar spine is the result of the 1981 motor vehicle accident, which caused serious spinal
injury. Mr. Pack was at maximum medical improvement for the compensable injury.

        Joseph Grady, M.D., performed an independent medical evaluation on August 8, 2007.
He assessed chronic lower back pain with myofascial strain and evidence of right leg
radiculopathy on EMG with reported disc protrusion on MRI. He noted that Mr. Pack was
awaiting a consultation with a neurosurgeon regarding the possibility of additional surgery with a
spinal cord stimulator to treat radicular symptoms. Shortly thereafter, a lumbar MRI revealed
midline disc bulging and disc degeneration at L5-S1 that was larger than on a previous MRI.
There was also midline bulging and disc degeneration at L4-5, disc degeneration at L2-3 and L3­
4, and osteoarthritic lumbar vertebral body lipping.

        In a letter dated November 1, 2007, Larry Carson, M.D., indicated that he examined Mr.
Pack and diagnosed degenerative disc disease with disc bulging of the lumbosacral spine. He
opined that surgery would not offer him much benefit and recommended follow-up for spinal
cord stimulator placement. Mr. Pack declined to undergo spinal cord stimulator placement and
instead decided to continue with conservative treatment.

        An independent medical evaluation was performed by A.E. Landis, M.D., on December
4, 2007. Dr. Landis opined that Mr. Pack suffered a soft tissue injury superimposed on pre­
existing degenerative disc disease which was aggravated by the compensable injury. He found no
evidence of radiculopathy and stated that Mr. Pack would not likely benefit from surgery or a
spinal cord stimulator. He was found to be at maximum medical improvement. Bruce Guberman,
M.D., also found Mr. Pack to be at maximum medical improvement in his June 25, 2008,
independent medical evaluation. He diagnosed acute and chronic post-traumatic lumbosacral
strain, multilevel disc disease, and right-sided lumbar radiculopathy confirmed by
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electrophysiological studies. He stated that no further treatment or testing was likely to improve
Mr. Pack’s condition.

       On March 23, 2009, Paul Craig, M.D., performed an independent medical evaluation in
which he diagnosed pre-existing moderate to severe degenerative disc disease, arthritic changes
of the lumbosacral spine, and a history of multiple lumbosacral sprains/strains with varying
degrees of muscle spasms and right-sided leg discomfort. He opined that the underlying
degenerative process in the lumbosacral spine is completely independent and unrelated to any of
Mr. Pack’s injuries and that it will progress over time. He found that Mr. Pack was at maximum
medical improvement for his compensable September 1, 2005, injury. Rajesh Patel, M.D., Mr.
Pack’s treating physician, disagreed with the finding of maximum medical improvement. He
requested the addition of lumbar disc herniation, lumbar radiculitis, retrolisthesis at L5-S1,
lumbar neural foraminal stenosis, and lumbago to the claim and authorization of a multi-level
decompression and fusion at L4-5 and L5-S1 and transforaminal lumbar interbody fusion.

        James Dauphin, M.D., performed two physician reviews. On January 9, 2012, he
recommended denying a request for a lumbar MRI because Mr. Pack had not worked in several
months and had not received treatment in over a year. He opined that his symptoms are likely the
result of degenerative changes. On October 26, 2012, Dr. Dauphin agreed that Mr. Pack needs
the requested surgery; however, the surgery is necessary for the treatment of non-compensable
degenerative disc disease, not the compensable injury. Lumbar disc herniation, lumbar
radiculitis, retrolisthesis at L5-S1, lumbar neural foraminal stenosis, and lumbago are also
unrelated to the compensable injury and should therefore be denied. On November 16, 2012, the
StreetSelect Grievance Board determined that Dr. Dauphin’s opinion was reliable. The requested
lumbar spine surgery was found to be necessary for the treatment of non-compensable, pre­
existing degenerative disc disease, not the compensable injury. The Board therefore determined
that the requested surgery and additional diagnoses should be denied.

        A lumbar MRI performed on September 18, 2012, revealed a small left of midline disc
herniation and disc degeneration at L5-S1, midline disc bulging and disc degeneration at L4-5,
disc degeneration at L2-3 and L3-4, osteoarthritic vertebral body lipping, and articular facet
hyperostosis. In a January 16, 2013, letter, Dr. Patel stated that Mr. Pack had attempted both
physical therapy and injections, but neither treatment was successful. His pain has become
constant and severe and he now requires surgical intervention. Dr. Patel opined that the surgery
is medically necessary and reasonably related to the compensable injury, and Mr. Pack is
temporarily and totally disabled due to severe pain.

        A final independent medical evaluation was performed by Paul Bachwitt, M.D., on April
10, 2013. Dr. Bachwitt diagnosed a simple lumbar sprain/strain. He opined that there was no
clinical evidence of radiculopathy or an operative disc lesion on that day. He stated that the
requested diagnoses are unrelated to the compensable injury. Mr. Pack has suffered no
progression or aggravation of his compensable injury and his current complaints are the result of
degenerative disease. Dr. Bachwitt opined that surgery is unnecessary in this case and, even if it
were necessary, it would be unrelated to the compensable lumbar sprain.

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        The claims administrator denied authorization of a multi-level decompression and fusion
at L4-5 and L5-S1, transforaminal lumbar interbody fusion, and the addition of lumbar disc
herniation, lumbar radiculitis, retrolisthesis at L5-S1, lumbar neural foraminal stenosis, and
lumbago as compensable components of the claim on November 20, 2012. On December 11,
2012, the claims administrator denied a request to reopen the claim for additional temporary total
disability benefits.

        On June 4, 2013, the Office of Judges affirmed the claims administrator’s November 20,
2012, decision insofar as it denied the requested surgery and the addition of lumbar disc
herniation, retrolisthesis at L5-S1, lumbar neural foraminal stenosis, and lumbago to the claim.
The Office of Judges modified the claims administrator’s decision to find that lumbar radiculitis
is a compensable component of the claim. In its Order, the Office of Judges also affirmed the
December 11, 2012, claims administrator’s decision denying a request to reopen the claim for
additional temporary total disability benefits. The only issues on appeal are the requested surgery
and the request to reopen the claim for additional temporary total disability benefits.

       The Office of Judges found that prior to the compensable injury, Mr. Pack had
degenerative changes throughout his lumbar spine. After the compensable injury, his symptoms
increased and there was some evidence of radiculopathy. Dr. Patel conceded that Mr. Pack had
degenerative changes in his lumbar spine but he asserts that his current problems are the result of
his compensable injury. The Office of Judges determined that his opinion was contradicted by
the opinions of Drs. Dauphin and Bachwitt. Surgery was suggested in 2007, but Mr. Pack’s pain
was tolerable and he decided against it. Dr. Dauphin noted that over the next four years there was
a natural progression of Mr. Pack’s degenerative disc disease. The Office of Judges therefore
found that the overall medical records show that the current need for surgery is due more to
degenerative disc disease.

        The Office of Judges determined that the original MRI showed degenerative disc disease
with protrusion but no herniation. The original EMG noted some mild L3-4 radiculopathy. The
Office of Judges concluded that the mild radiculopathy was the result of the compensable injury
even though it is likely that Mr. Pack would not have developed radiculopathy without the
underlying degenerative changes. Lumbar disc herniation, retrolisthesis at L5-S1, lumbar neural
foraminal stenosis, and lumbago were found to be primarily the result of degenerative disc
disease and therefore non-compensable. The Office of Judges found that Mr. Pack’s lumbar
spine condition has progressed since the compensable injury, and he may be temporarily and
totally disabled. However, the main cause of his current significant symptoms is his non­
compensable degenerative disc disease, 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 in its November 21, 2013, decision. On appeal, Mr. Pack argues
the requested surgery should be authorized because the Office of Judges found that lumbar
radiculitis is a compensable component of the claim. The condition is disabling and an accepted
method of treatment is surgery. Further, Dr. Patel opined that temporary total disability benefits
are necessary due to the compensable injury. Jackie Withrow Hospital argues that the requested

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surgery is for the treatment of a progression of Mr. Pack’s pre-existing degenerative disc disease
and is not authorized within the guidelines of West Virginia Code of State Rules § 85-20 (2006).

       After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. Though Mr. Pack may need the requested surgery, it is
necessary for his pre-existing degenerative conditions and not the compensable injury. Because
his current symptoms are the result of non-compensable conditions, he has failed to show an
aggravation or progression of his compensable injury that would justify reopening the claim for
temporary total disability benefits.

        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: January 20, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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