                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                             January 20, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
BRANDY L. ADDISON,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1023 (BOR Appeal No. 2048273)
                   (Claim No. 2010115681)

BECKLEY ONCOLOGY ASSOCIATES, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Brandy L. Addison, by John H. Shumate Jr., her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Beckley Oncology Associates,
Inc., by James Heslep and Gary Nickerson, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 10, 2013, in
which the Board affirmed a March 25, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 6, 2012,
decision, which denied a request to add displacement of intervertebral disc site unspecified,
displacement of cervical intervertebral disc without myelopathy, and cervical spinal stenosis as
compensable components 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. Addison, a registration clerk, was injured in the course of her employment while she
was trying to move a desk on November 23, 2009. Her claim was held compensable for
sprain/strain of the rotator cuff, neck, and thoracic regions. An MRI taken shortly after the injury
showed a diffuse mild disc bulge at C5-6 and C6-7. An EMG of both upper extremities was
within normal limits except for mild carpal tunnel syndrome.

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        Ms. Addison underwent an independent medical evaluation by Prasadarao Mukkamala,
M.D., on May 9, 2011. In that evaluation, she reported right shoulder pain as well as numbness
and tingling in her right hand. She also complained of right elbow and neck pain. Dr.
Mukkamala found that Ms. Addison had reached maximum medical improvement for her
compensable conditions and was capable of returning to work. Dr. Mukkamala performed a
second independent medical evaluation on July 20, 2011. He again found that Ms. Addison had
reached maximum medical improvement. On September 6, 2011, Rebecca Thaxton, M.D.,
performed a physician review. She recommended denying the addition of degeneration of
cervical intervertebral disc to the claim. She noted that degenerative diseases are progressive in
nature and the requested diagnosis would not have been caused by Ms. Addison’s lifting injury.
Richard Vaglienti, M.D., disagreed and opined in his August 25, 2011, attending physician’s
report that Ms. Addison was temporarily and totally disabled from June 14, 2011, through
December 31, 2011, due to the compensable injury. He attached a diagnosis update to the report
that requested the addition of degeneration of cervical intervertebral disc to the claim.

        On October 21, 2011, the StreetSelect Grievance Board found that degeneration of
cervical intervertebral disc should not be added to the claim. The Board determined that Ms.
Addison was diagnosed with degenerative disease of the cervical spine that was still progressing.
She was found to be at maximum medical improvement for her compensable injury and no
additional treatment was recommended. Because a degenerative disease is not caused by a
sprain/strain and is progressive in nature, the Board found the condition was unrelated to the
compensable injury. On April 6, 2012, the StreetSelect Grievance Board determined that the
claim is allowed for sprain/strain of the cervical and thoracic spine and rotator cuff. MRIs show a
progression of degenerative changes but no evidence of disc herniation or radiculopathy. The
worsening symptoms are the result of the natural progression of pre-existing degenerative
disease as seen by MRI findings and the fact that stenosis, a degenerative condition, is one of the
requested conditions. It therefore recommended that the request to add displacement of
intervertebral disc site unspecified, displacement of cervical intervertebral disc without
myelopathy, and cervical spinal stenosis to the claim be denied.

        The claims administrator denied the request to add displacement of intervertebral disc site
unspecified, displacement of cervical intervertebral disc without myelopathy, and cervical spinal
stenosis as compensable components of the claim on April 6, 2012. The Office of Judges
affirmed the decision in its March 25, 2013, Order. The Office of Judges found that the allowed
diagnoses in the claim are sprain/strain of the neck, rotator cuff, and thoracic spine. Ms. Addison
was found to be at maximum medical improvement on May 9, 2011, by Dr. Mukkamala. On
December 5, 2011, Dr. Vaglienti requested the addition of the requested diagnoses stating that
diagnostic testing shows a worsening of symptoms since the primary injury. The Office of
Judges determined that Dr. Vaglienti requested the addition of degeneration of cervical
intervertebral disc to the claim on August 25, 2011. The claims administrator denied the request
and the decision was subsequently affirmed by both the Office of Judges and the Board of
Review. The Office of Judges noted that Ms. Addison has been found to be at maximum medical
improvement by three separate claims administrator’s decisions, which were also affirmed by the
Office of Judges and the Board of Review.
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        The Office of Judges found that Ms. Addison has undergone three cervical MRIs. The
first MRI, taken on December 11, 2009, showed a diffuse mild disc bulge at C5-6 and C6-7. The
second MRI taken on October 7, 2010, is not of record, but is referred to in the medical reports
of record. In an addendum report of October 29, 2010, the radiologist compared the two MRIs
and stated that there was a slight progression of the disc protrusion at C5-6. The most recent
MRI, taken on May 21, 2011, shows a mild posterior protrusion of the C6-7 intervertebral disc,
possibly in combination with small marginal osteophytes resulting in mild spinal stenosis;
encroachment on the bilateral C6-7 lateral recess, right greater than left; and possible nerve root
impingement. It also indicated a mild posterior bulging at the C5-6 intervertebral disc resulting
in effacement of the cervical thecal sac.

        The Office of Judges determined, relying upon Dr. Thaxton’s physician review, that Ms.
Addison did not have an acute herniated disc causing cervical radiculopathy with the subject
injury. The initial MRI merely showed a bulge. Further, an EMG of the upper extremities was
within normal limits except for mild carpal tunnel syndrome. The Office of Judges therefore
concluded that although the MRIs show a progression, it is more likely than not that it is a
progression of pre-existing degenerative disc disease rather than the compensable soft tissue
injury. Also, as the Grievance Board noted, spinal stenosis is a degenerative condition and per
West Virginia Code of State Rules § 85-20-37.8 (2006), degenerative conditions may be
associated with a higher incidence of persistent symptoms but are not compensable conditions.

        In a September 10, 2013, Order, the Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its decision. On appeal, Ms. Addison
argues that her treating physician, Dr. Vaglienti, found that the requested diagnoses are the result
of her work-related injury. She also asserts that the Office of Judges failed to consider his
medical records and diagnosis update request. Further, Ms. Addison maintains that the opinions
of Dr. Thaxton and Dr. Mukkamala are less reliable than that of Dr. Vaglienti because Dr.
Vaglienti is the treating physician and therefore in a better position to assess her injuries.
Beckley Oncology Associates, Inc., asserts that there is no reliable medical evidence in the
record to causally link Ms. Addison’s alleged cervical disc conditions to her compensable injury
and that there is no objective evidence of a disc herniation.

        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. Addison sustained
sprains/strains of the rotator cuff, neck, and thoracic spine as a result of her compensable injury.
The requested diagnoses are the result of pre-existing, non-compensable degenerative conditions
and therefore cannot be added as compensable components of the claim.

        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: January 20, 2015

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




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