                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TAMMIE L. BARTOK,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0799 (BOR Appeal No. 2047979)
                   (Claim No. 2011041428)

OHIO VALLEY MEDICAL CENTER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Tammie L. Bartok, by Jonathan C. Bowman, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Ohio Valley Medical Center,
Inc., by Toni J. Minner, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 2, 2013, in which
the Board affirmed a December 3, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 13, 2011,
decision which denied a request to add exacerbation of radiculopathy/cervical spine stenosis as a
compensable component of the claim. 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. Bartok, a registered nurse, was injured in the course of her employment on June 17,
2011, while lifting, moving, and turning a heavy patient. Her claim was held compensable for
right shoulder sprain. She reported to Ohio Valley Medical Center emergency room physicians
that she was experiencing pain in her neck and right shoulder. An MRI of the right shoulder
revealed no evidence of tearing. Ms. Bartok has a history of severe cervical spine conditions. In
2009, she reported a history of chronic neck and shoulder pain. A cervical spine MRI taken in
July of 2011 revealed slight spinal canal stenosis at C3-4; osteophytes and stenosis at C4-5;
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advanced degenerative disc space narrowing, severe spinal canal stenosis, and mild neural
foraminal encroachment at C5-6; and advanced degenerative disc space narrowing with severe
spinal canal stenosis at C6-7. In an October of 2011, treatment note, Ms. Bartok was diagnosed
with C5 radiculopathy, which was confirmed by an EMG. She requested that exacerbation of
radiculopathy/cervical spine stenosis be added as compensable components of her claim. The
claims administrator denied the request on September 13, 2011.

        The Office of Judges affirmed the claims administrator’s decision in a December 3, 2012,
Order. The Office of Judges found that the evidence establishes that Ms. Bartok has a history of
chronic neck pain that pre-dated the compensable injury by several years. In 2009, she was
treated for bilateral carpal tunnel syndrome and reported chronic neck and shoulder pain. A
cervical MRI taken in July of 2011 revealed degenerative changes and osteophyte complex with
severe spinal canal stenosis and mild foraminal encroachment. The Office of Judges found that
Thomas Kramer, M.D., noted in an October 17, 2011, independent medical evaluation that Ms.
Bartok had a substantial and significant problem with her cervical spine which pre-dated the
work-related injury. He opined that there was no evidence to indicate any cervical condition was
made symptomatic by the work-related injury. The Office of Judges stated that Bill Hennessey,
M.D., also performed an independent medical evaluation and found that Ms. Bartok had reached
maximum medical improvement for her compensable right shoulder strain. He determined that
she had no residual physical impairment for the injury. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, (4th ed. 1993), he determined
that her right shoulder range of motion was normal. Dr. Hennessey noted that Ms. Bartok had
non-work-related severe cervical stenosis and radiculopathies, which cause a dull ache in her
shoulder. He opined that the conditions are unrelated to her compensable injury. They were
determined to be the result of the development of osteoarthritic changes due to the aging process
leading to advanced stenosis of the spinal canal. He felt that work was not a significant
aggravating factor in the anatomic neck changes. Lastly, the Office of Judges noted that Ms.
Bartok cited her deposition testimony; however, the testimony was not submitted into evidence
in the present case and therefore could not be considered.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 2, 2013, decision. On appeal, Ms. Bartok argues that her
pre-existing neck conditions do not preclude her from sustaining a new work-related injury. Ohio
Valley Medical Center, Inc., asserts that the requested additional diagnosis is the result of pre­
existing, non-compensable conditions.

        Upon review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. The evidentiary record indicates that Ms. Bartok did not
sustain an exacerbation of radiculopathy/cervical spine stenosis as a result of her June 17, 2011,
compensable injury.

        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.
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                                   Affirmed.

ISSUED: October 20, 2014

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




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