                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
DONNA M. MANES,                                                                  November 29, 2016
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0065 (BOR Appeal No. 2050639)
                   (Claim No. 2013021415)

MCDOWELL COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Donna M. Manes, by Gregory S. Prudich, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. McDowell County Board of
Education, by Marion E. Ray, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 21, 2015, in
which the Board affirmed a July 10, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 14, 2015,
decision denying the addition of lumbosacral musculoligamentous strain to the claim. In its
Order, the Office of Judges also affirmed the claims administrator’s June 18, 2014, decision
denying authorization for an MRI of the lumbar spine. 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. Manes, a cook, was injured on February 7, 2013, when she slipped and fell.
Treatment notes from Tug River Health Associates, Inc., from that day indicate that she slipped
and fell in the kitchen at work that morning. Ms. Manes reported that she fell onto her hands and
knees and now had pain in her right knee and lower back. She was diagnosed with strain of the
knee and leg and lumbago. The first report of injury, completed by the employer, states that the
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claimant slipped on a wet floor, landed on her right knee, and injured her hip, knee, and lower
back. The claim was held compensable for contusion of the knee and lower leg.

        Ms. Manes was seen at Tug River Health Associates a variety of times following the
compensable injury for routine check-ups and medication refills. There was no mention of back
pain again until January 14, 2014, when she reported that her legs and lower back were getting
worse and hurting more. She was diagnosed with lumbago, sciatica, pain in joint, and pain in
pelvis region and thigh. X-rays were taken of the lumbar spine and hips.

       Ms. Manes was referred to Robert Kropac, M.D., who noted on March 4, 2014, that she
was asymptomatic until February 7, 2013, when she slipped and fell on a wet floor twisting her
back. She was diagnosed with lumbosacral strain superimposed on a pre-existing T12
compression fracture. On April 15, 2014, she had no changes since her initial evaluation. Her
pain was exacerbated by bending and stooping. She had pain in her lower back and legs, as well
as numbness. On May 19, 2014, a lumbar x-ray showed chronic compression at T12 and
osteoarthritic lumbar vertebral body lipping. X-rays of the hips showed bilateral degenerative
disease.

        On May 27, 2014, treatment records from Princeton Community Hospital emergency
room indicate Ms. Manes reported increased pain, numbness, and tingling in her lower back and
left leg since May 19, 2014. The numbness and pain were not new symptoms and had been
gradually increasing; however, the incident made her condition much worse. She was diagnosed
with acute lumbar strain and acute exacerbation of left thigh numbness. The claims administrator
denied a request for an MRI of the lumbar spine on June 18, 2014.

         On October 21, 2014, Ms. Manes testified in a deposition that she slipped and fell on
February 7, 2013, and injured her right knee, hip, and lower back. She reported the injury to her
employer immediately after it occurred and sought medical treatment. She stated that she
continued to have problems with her lower back, hip, and legs. She sought treatment again when
she developed numbness in her legs. On May 19, 2014, she was lifting a milk crate at work, felt
pain in her lower back and hip, and dropped the crate. She stated that she had continuous
problems since February 7, 2013, that were greatly exacerbated by the May of 2014 incident.
Her pain eased in the summer when she did not work and could take her medication as needed.
Her pain increased when she returned to work in August of 2013 because she had to do heavy
lifting again. She had no back pain or problems prior to February 7, 2013. She stated that she has
never fallen or been injured and does not know how her T12 fracture occurred.

        Dr. Kropac also testified in a deposition on October 21, 2014. He stated that he treated
Ms. Manes for her February 7, 2013, injury approximately a year after the injury occurred. He
diagnosed lumbosacral strain, rule out lumbar disc herniation. Ms. Manes reported no history of
lower back problems. He stated that he saw her over a year after her compensable injury
occurred. He stated that he did not believe the T12 compression fracture was related to her fall,
but it was possible it could have been. Though he did not think the compression fracture was
related to the fall, Dr. Kropac testified that he did believe Ms. Manes injured her back at the time
of the February 7, 2013 injury. She consistently reported pain and the way she fell could have
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injured her back. Dr. Kropac admitted that he had none of her prior medical records upon which
to base his opinions.

       In a November 20, 2014, physician review, Rebecca Thaxton, M.D., recommended that
lumbar sprain not be added to the claim. She noted that a treatment record from February 7,
2013, documented a slip and fall on that day and low back pain since that injury in the morning.
However, on exam there was no tenderness and no objective evidence of a musculoligamentous
lumbar strain. The treatment notes do not mention lower back pain again until January 14, 2014,
when Ms. Manes was diagnosed with sciatica and lumbago.

       Prasadarao Mukkamala, M.D., performed a record review on March 16, 2015, in which
he opined that Ms. Manes sustained a left knee contusion as a result of the compensable injury.
He opined that lumbosacral musculoligamentous sprain should not be added to the claim. He
found that on the day of injury, Ms. Manes reported lower back pain on examination; however,
there was no tenderness over the lower back or hips. She was diagnosed with lumbago, which is
a symptom and not a diagnosis. There were no physical findings consistent with a lumbar sprain.
A treatment note dated eleven days after the injury did not document back pain. No mention was
made of back pain again until eleven months after the injury occurred.

         The claims administrator denied the addition of lumbosacral musculoligamentous strain
to the claim on January 14, 2015. On July 10, 2015, the Office of Judges affirmed the claims
administrator’s June 18, 2014, and January 14, 2015, decisions. The Office of Judges found that
Ms. Manes reported knee, leg, and lower back pain when she fell on February 7, 2013, as noted
in the first report of injury and a treatment note from Tug River Health Associates. On March 14,
2014, Dr. Kropac examined her and found subjective complaints consistent with nerve root
instability, though there was no objective evidence. He diagnosed lumbosacral
musculoligamentous strain superimposed on a T12 compression fracture. He requested a lumbar
MRI to rule out disc herniation. The request was denied by the claims administrator which noted
that the claim was approved for knee contusion only, no protest was filed, and the protest period
has expired.

        The Office of Judges noted that x-rays of the lumbar spine taken May 19, 2014, showed
osteoarthritic lumbar vertebral body lipping. X-rays of the hips showed bilateral degenerative
disease of the hips. In physician reviews, Drs. Thaxton and Mukkamala both concluded that
lumbosacral musculoligamentous strain should not be added to the claim. Both physicians found
that the lower back complaints were unrelated to the compensable fall. The Office of Judges
found that while Dr. Kropac admitted that he had none of Ms. Manes’s prior medical reports
upon which to base his opinions, Drs. Mukkamala and Thaxton both reviewed the medical record
before arriving at their conclusion. Their opinions were therefore found to be persuasive. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on December 21, 2015.

        After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Though Ms. Manes reported lower back pain immediately following her
injury, the claim was only held compensable for knee contusion. That decision was not timely
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protested. Ms. Manes did not seek treatment for or report back problems until eleven months
after the compensable injury. Additionally, Dr. Kropac’s opinion is not as reliable as that of Drs.
Thaxton and Mukkamala as he did not review any of Ms. Manes’s prior medical records and had
only her account of the facts to base his opinion on.

        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 29, 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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