STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
CHRISTIAN CYRUS, FILED
Claimant Below, Petitioner November 6, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0640 (BOR Appeal No. 2053880) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2016019282)
SUDDENLINK COMMUNICATIONS,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Christian Cyrus, by Counsel Reginald D. Henry, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Suddenlink
Communications, by Counsel Steven K. Wellman, filed a timely response.
The issues on appeal are permanent partial disability and medical benefits. The claims
administrator granted a 4% permanent partial disability award on June 2, 2017. On July 23, 2018,
the claims administrator denied a request for the medications Flexeril, Depo-Medrol, and
Ketorolac. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the
decisions in its January 16, 2019, Order. The Order was affirmed by the Board of Review on June
17, 2019.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Cyrus, a broad band technician, was injured in the course of his employment on
January 19, 2016, when he slipped and fell on ice. The Employees’ and Physicians’ Report of
Injury indicates he was diagnosed with neck strain, low back strain, left hip sprain, left elbow
contusion, and unspecified head injury. A brain CT scan showed no evidence of acute injury or
skull fracture. Cervical x-rays showed no evidence of acute fracture or dislocation. Lumbar x-rays
showed no acute fracture or dislocation. They also showed facet arthropathy from T12-L2 and L3-
S1.
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Mr. Cyrus has a history of left shoulder issues. On November 29, 2014, he underwent a left
shoulder MRI which showed a partial thickness tear of the bursal surface of the supraspinatus;
attenuation of the biceps long head tendon, which placed it at risk for a full thickness tear; and a
questionable posterior labral tear. On February 17, 2015, Mr. Cyrus underwent a left shoulder
arthroscopy and subacromial decompression for a partial left shoulder rotator cuff tear.
Mr. Cyrus sought treatment from New River Health. On January 21, 2016, he saw Crystal
Cooper, PA-C, for his work-related fall and reported headaches, left shoulder pain, and elbow pain.
On May 17, 2016, he was diagnosed with trochanteric bursitis. On July 22, 2016, Mr. Cyrus
reported that he was sitting at home on July 18, 2016, when he turned his head and heard a loud
pop in his neck, followed by immediate pain. He stated that a few days later, he was playing
badminton and heard another pop in his neck. On September 6, 2016, Mr. Cyrus reported that he
was working full time and that his left hip pain had resolved. On February 22, 2017, a cervical
MRI was reviewed and interpreted as showing disc displacement but no impingement. A left
shoulder MRI showed fraying in the rotator cuff that was likely chronic. Mr. Cyrus was diagnosed
with rotator cuff tendon tear, left shoulder pain, trochanteric bursitis, and knee sprain. He returned
on April 18, 2017, and reported neck pain, right arm numbness, and decreased right hand function.
Mr. Cyrus was diagnosed with knee sprain, rotator cuff tendon tear, and left shoulder pain and
tingling. On August 7, 2017, he was seen for left shoulder pain. His hip bursitis had resolved. Mr.
Cyrus was diagnosed with knee sprain, left shoulder joint pain, and upper back pain. The claim
was held compensable for neck strain, low back sprain, left hip sprain, left elbow contusion, and
head injury on February 1, 2016.
A September 20, 2016, cervical MRI showed a shallow non-compressive disc displacement
at C3-4, a non-compressive disc displacement at C5-6, and a shallow disc displacement at C6-7
causing slight deformity of the thecal sac. A left shoulder MRI showed advanced degenerative
labrum changes, a thickened glenohumeral ligament, significant improvement in the biceps
tendon, and superficial fraying consistent with chronic partial thickness tear with a more
pronounced scar.
Joseph Grady, M.D., performed an independent medical evaluation on April 11, 2017, in
which he noted that Mr. Cyrus had a left shoulder rotator cuff repair a year earlier. He diagnosed
cervical sprain superimposed on preexisting cervical spondylosis, lumbar sprain superimposed on
preexisting degenerative spondylosis, left hip sprain, and left shoulder sprain superimposed on a
preexisting rotator cuff tear. Dr. Grady noted that Mr. Cyrus had the preexisting conditions of
multilevel lumbar facet arthropathy of the lumbar spine and multilevel cervical spondylosis, based
on imaging studies. He had reached maximum medical improvement. Dr. Grady assessed 0%
impairment for the left elbow contusion and head injury. For the cervical spine, Dr. Grady assessed
3% impairment for range of motion loss. He then placed Mr. Cyrus in Cervical Category II of West
Virginia Code of State Rules § 85-20, which allows for 5-8% impairment. Dr. Grady therefore
adjusted the rating to 5%; however, he apportioned 3% for preexisting conditions. For the lumbar
spine and left hip, Dr. Grady assessed 0% impairment. For the left shoulder, he assessed 4% but
apportioned 2% for a preexisting left shoulder injury. Dr. Grady’s total impairment assessment for
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the compensable injury was 4%. The claims administrator granted a 4% permanent partial
disability award on June 2, 2017, based on Dr. Grady’s evaluation.
A June 5, 2017, treatment note by Trista Bunty, PA, indicates Mr. Cyrus was seen for lower
back pain, left shoulder pain, and numbness and tingling into the left leg. Ms. Bunty diagnosed
low back pain and prescribed Depo-Medrol, Ketorolac, and Flexeril.
Michael Kominsky, D.C., performed an independent medical evaluation on March 6, 2018,
in which he noted the compensable conditions as neck strain, low back strain, left hip sprain, left
elbow contusion, head injury, and left shoulder contusion. Dr. Kominsky diagnosed chronic
cervical sprain/strain, left elbow contusion, chronic left hip dysfunction, chronic lumbar
sprain/strain, and left shoulder contusion. Mr. Cyrus had reached maximum medical improvement.
Dr. Kominsky assessed 6% left shoulder impairment and apportioned 3% to the compensable
injury. For the left hip, he found 2% impairment. He assessed 7% cervical impairment and placed
Mr. Cyrus in Cervical Category II. He apportioned 2% to preexisting degenerative changes. For
the lumbar spine, Dr. Kominsky found 8% range of motion impairment. Dr. Kominsky’s total
impairment assessment was 18%.
The claims administrator stated in a March 15, 2018, email to Mr. Cyrus that the claim was
never formally accepted for the left shoulder. It stated that treatment was covered, and a permanent
partial disability award was given for the left shoulder, but there was never a formal compensability
ruling. On June 5, 2017, Ms. Brunty requested authorization of Depo-Medrol, Ketorolac, and
Flexeril, as well as an MRI. She completed a work excuse indicating Mr. Cyrus was taken off of
work from June 11, 2018, through June 25, 2018. On June 15, 2018, Mr. Cyrus completed a claim
reopening application, alleging that he suffered an aggravation or progression of his compensable
injury. He stated that he had a recent flare-up of pain and was unable to work. In a June 22, 2018,
diagnosis update, Ms. Brunty requested that right shoulder joint pain and right-hand paresthesia
be added to the claim. A work excuse was also completed that day, indicating that Mr. Cyrus was
unable to work from June 22, 2018, through July 6, 2018. On July 12, 2018, Mr. Cyrus underwent
a right shoulder MRI which showed a small partial thickness tear of the distal fibers of the
infraspinatus foot place, a small probable labra tear, and mild acromioclavicular joint arthropathy.
The claims administrator denied a request for Flexeril, Depo-Medrol, and Ketorolac on July 23,
2018. Ms. Brunty completed a diagnosis update on September 10, 2018, in which she requested
the addition of partial thickness rotator cuff tear and left shoulder girdle sprain to the claim.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on October
24, 2018, in which he noted that Mr. Cyrus returned to work until June of 2018 when he stopped
working due to the same symptoms but had no new injury. Dr. Mukkamala opined that there was
no indication for Flexeril, Depo-Medrol, or Ketorolac. Dr. Mukkamala assessed 2% cervical
impairment. He placed Mr. Cyrus in Cervical Category II and adjusted the rating to 5%. Dr.
Mukkamala then apportioned 2% for preexisting degenerative changes. For the left shoulder, Dr.
Mukkamala asssessed 2% impairment but apportioned 1% for a preexisting left shoulder injury.
For the lumbar spine, Dr. Mukkamala found 2% impairment but placed Mr. Cyrus in Lumbar
Category I, which allows for 0% impairment. He therefore adjusted the lumbar rating to 0%. Dr.
Mukkamala’s total impairment assessment was 3%.
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The Office of Judges affirmed the claims administrator’s decisions granting a 4%
permanent partial disability award and denying authorization of the medications Flexeril, Depo-
Medrol, and Ketorolac in its January 16, 2019, Order. Regarding permanent partial disability, the
Office of Judges found that Dr. Kominsky’s impairment assessments were considerably greater
than those of Drs. Mukkamala and Grady. Dr. Kominsky found an additional 2% for the left elbow,
2% for the left hip, 3% for the cervical spine, and 8% for the lumbar spine. Dr. Kominsky’s total
impairment assessment was 18% while Dr. Grady found 4% and Dr. Mukkamala found 3%. The
Office of Judges determined that the reports of Drs. Grady and Mukkamala were more reliable
than that of Dr. Kominsky based on the remainder of the evidence. Treatment notes indicated that
Mr. Cyrus no longer had elbow or hip pain. The Office of Judges therefore concluded that he has
0% permanent partial disability for either body part, based on the reports of Drs. Grady and
Mukkamala. The Office of Judges next determined that Dr. Kominsky’s finding of 8% lumbar
impairment was unreliable and unsupported by the treatment notes of record. Treatment notes both
before and after Dr. Kominsky’s evaluation show no indication of lower back pain. The Office of
Judges determined that Mr. Grady was entitled to 0% lower back impairment per the reports of
Drs. Grady and Mukkamala. The Office of Judges ultimately concluded that Mr. Cyrus was
entitled to no more than a 4% permanent partial disability award for his compensable injury.
Regarding medications, the Office of Judges found that Depo-Medrol, Ketorolac, and
Flexeril were requested to treat lower back pain. The only compensable condition of record that
would cause lower back pain is a lumbar sprain, which allows for treatment up to eight weeks. The
treatment was requested two years after the compensable injury, well outside of the guidelines of
West Virginia Code of State Rules § 85-20. Further, Dr. Mukkamala opined that Mr. Cyrus
required no further treatment. The Office of Judges therefore denied the requested medications.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on June 17, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Dr. Kominksy’s independent medical evaluation is unreliable
as it is unsupported by the remainder of the medical evidence. The Office of Judges was correct to
affirm a 4% permanent partial disability award. The Office of Judges was also correct to affirm
the claims administrator’s decision denying the requested medications. Further medical care for
the compensable lumbar sprain is not indicated per West Virginia Code of State Rules § 85-20.
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.
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ISSUED: November 6, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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