IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
LINDA REYNOLDS,
Claimant Below, Petitioner February 15, 2023
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-199 (BOR Appeal No. 2058203) OF WEST VIRGINIA
(JCN: 2021005312)
WEST VIRGINIA DIVISION OF HIGHWAYS,
Employer Below, Respondent
MEMORANDUM DECISION
Claimant Linda Reynolds appeals from the decision of the Workers’ Compensation
Board of Review (“Board”). Employer West Virginia Division of Highways (“Division of
Highways”) timely filed a response. 1 Ms. Reynolds did not file a reply.
The issues presented on appeal are temporary total disability (“TTD”), treatment
authorization, and a diagnosis update request. By separate orders, the claim administrator
closed Ms. Reynolds’ TTD benefits on July 9, 2021, denied authorization for an MRI and
follow-up appointment on August 4, 2021, and denied Ms. Reynolds’ diagnosis update
request on September 1, 2021. The Office of Judges (“OOJ”) affirmed each of those
decisions by order dated April 18, 2022. On September 27, 2022, the Board issued an order
adopting the OOJ’s findings of facts and conclusions of law, affirming its ruling below.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the Board’s decision but no substantial
question of law. As explained below, we find that based upon recent precedent, the Board
erred by adopting the findings and conclusions of the OOJ. Accordingly, a memorandum
decision vacating and remanding the Board’s decision is appropriate under the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure.
On September 21, 2020, Ms. Reynolds was working for the Division of Highways
as a CW-II heavy equipment operator when she sustained compensable injuries following
a fall while exiting her dump truck. She filed a workers’ compensation claim and, on
September 29, 2020, the claim administrator held her claim compensable for bilateral
elbow contusions. Following review of the medical records from her date of injury, the
1
Linda Reynolds is represented by J. Thomas Greene, Esq. and T. Colin Greene,
Esq. The West Virginia Division of Highways is represented by Steven K. Wellman, Esq.
and James W. Heslep, Esq.
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claim administrator issued an order on October 1, 2020, adding ligament sprain of the
cervical spine, unspecified strain of the muscle/tendon, strain of the shoulder/upper on the
left, right and left elbow contusions, contusion of other part of the head, unspecified head
injury, and strain of the muscle fascia and tendon at the neck as compensable conditions.
The claim administrator’s order also noted a minor head injury, cervical strain, left shoulder
strain and multiple contusions. Ms. Reynolds was referred to Dr. Russell Biundo, M.D.
with the Spine and Pain Clinic of WVU Neurosurgery at United Hospital Center for follow
up care.
On October 28, 2020, Ms. Reynolds underwent MRIs of the thoracic and lumbar
spine and both scans revealed multilevel degenerative changes. On November 9, 2020, a
progress note was completed by Gary Barcinas, PA-C and approved by Dr. Biundo. The
progress note indicated that Ms. Reynolds was evaluated and received treatment for pain
in her thoracic and lumbar spine with pain radiating in the right leg. Mr. Barcinas’
diagnoses were lumbar radiculopathy and lumbar foraminal stenosis with a
recommendation for physical therapy and a referral for L4-L5 lumbar epidural steroid
injections.
Following a series of injections, Dr. Biundo indicated in a January 4, 2021, progress
note that Ms. Reynolds was experiencing worsening lumbosacral pain that radiated through
her right hip and right lateral lower extremity. The report stated that physical therapy had
failed to provide relief or improvement. Dr. Biundo diagnosed Ms. Reynolds with lumbar
spondylosis, lumbar stenosis, lumbar radiculopathy, and lumbar strain. Ms. Reynolds was
referred to Dr. Bill Underwood, M.D. for a second opinion.
Ms. Reynolds was evaluated by Dr. Underwood on January 18, 2021. Ms. Reynolds
reported thoracolumbar back pain with radiation into the entire right lower extremity with
associated weakness and she denied any radicular pain in the left lower extremity. Dr.
Underwood’s diagnosis was annular tear of lumbar disc, degenerative lumbar spinal
stenosis, protrusion of lumbar intervertebral disc, degenerative joint disease, facet
hypertrophy of the lumbar region, and lumbar back pain with radiculopathy affecting the
right lower extremity. Dr. Underwood recommended surgical intervention through a L4-
L5 decompressive laminotomy.
At the request of the claim administrator, a file review was performed by Dr. James
Dauphin, M.D. on January 20, 2021, regarding Dr. Underwood’s surgical
recommendation. Dr. Dauphin opined that the surgery had not been proven to be related to
Ms. Reynolds’ injury and therefore should not be approved for payment. Dr. Dauphin
further opined that the multilevel disc degeneration in Ms. Reynolds’ lumbar spine was not
related to her compensable injury, nor was the condition of lumbar spinal stenosis for which
the proposed surgery was intended. Based on Dr. Dauphin’s report, the claim administrator
denied surgical authorization on January 26, 2021.
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On April 29, 2021, Ms. Reynolds underwent an independent medical examination
(“IME”) performed by Dr. Scott Rainey, D.O. In his report, Dr. Rainey specifically noted
that despite her multiple approved diagnoses, he was only asked to evaluate Ms. Reynolds’
compensable condition of ligaments sprain of the lumbar spine. He found that Ms.
Reynolds’ injury was consistent with the diagnosis and her treatment was appropriate.
However, Dr. Rainey found Ms. Reynolds had reached maximum medical improvement
(“MMI”) for that condition. Regarding Dr. Underwood’s surgical recommendation, Dr.
Rainey opined that Ms. Reynolds’ symptoms for which the surgery was designed, were
from preexisting degeneration and not work related. Dr. Rainey rated Ms. Reynolds’ whole
person impairment (“WPI”) at 0% and she was fully cleared to return to work.
On May 3, 2021, Dr. Biundo diagnosed Ms. Reynolds with lumbar stenosis and
lumbar herniated nucleus pulposus. Dr. Biundo placed Ms. Reynolds off work as she
waited for the claim administrator to approve surgical intervention. On June 23, 2021, the
claim administrator again denied the surgery request.
Throughout her treatment, Ms. Reynolds’ back condition and associated pain
continued to worsen resulting in Dr. Biundo and Dr. Underwood both making additional
diagnoses. As a result, multiple diagnosis update requests were made, as well as subsequent
treatment requests seeking approval for an MRI and surgical intervention. In response to
these requests, the claim administrator sought additional file reviews. According to the
record, these reviews were completed by Dr. Syam Stoll, M.D. and Dr. Rebecca Thaxton,
M.D. whose reports opined that the requested diagnoses, MRI, and surgical intervention
were related to preexisting degenerative conditions and not causally related to Ms.
Reynolds’ compensable injury. Based on those opinions, the claim administrator denied
each of Ms. Reynolds’ requests. Included in those denials was the September 1, 2021, claim
administrator order that denied Ms. Reynolds’ most recent diagnosis update request to hold
the condition of “protrusion of intervertebral disc of lumbar,” among others, as
compensable.
On September 23, 2021, Dr. Underwood performed a right L3-4, L4-5
decompressive laminotomy on Ms. Reynolds. The post-operative diagnosis was protrusion
of intervertebral disc. The surgery was paid for by Ms. Reynolds’ private insurance. On
January 12, 2022, an IME was performed by Dr. Jennifer Lultschik. Dr. Lultschik opined
that Ms. Reynolds’ compensable injury of ligaments sprain of the lumbar spine had reached
pre-injury status and placed Ms. Reynolds at 1% WPI. Dr. Lultschik further opined that
Ms. Reynolds’ other persistent symptoms were a result of preexisting degenerative
conditions that were unrelated to her compensable injury.
Ms. Reynolds protested and the OOJ issued its order on April 18, 2022, affirming
all three claim administrator’s decisions. Specifically, with respect to the denial of the
diagnosis update, the OOJ found that Drs. Dauphin, Stoll, Thaxton, Rainey, and Lultschik
all determined Ms. Reynolds’ degenerative conditions preexisted her injury, and as a result,
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Ms. Reynolds’ request for the L4-L5 decompressive laminotomy procedure was a
treatment for non-compensable conditions. The OOJ did acknowledge that Ms. Reynolds’
deposition testimony reflected she was asymptomatic prior to the date of her injury and
that Ms. Reynolds had not previously received treatment for the same. However, the OOJ
found that even if Ms. Reynolds’ degenerative conditions were aggravated by the work
injury, she failed to prove the discrete new injury requirement set forth in Gill v. City of
Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016).
Ms. Reynolds timely appealed the OOJ’s ruling to the Board. On September 27,
2022, the Board issued its order upholding the OOJ’s decision. Ms. Reynolds now appeals
the Boards’ ruling to this Court.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __ W. Va. __, __, __ S.E.2d __, __, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).
As part of her appeal, Ms. Reynolds argues the Board erred by failing to apply our
Supreme Court of Appeals’ recent holding in Moore v. ICG Tygart Valley, LLC, ___ W.
Va. ___, 879 S.E.2d 779 (2022), to determine whether the diagnosis for protrusion of
intervertebral disc is compensable. Prior to Moore, Syllabus Point 3 of Gill created a
general rule that,
[a] noncompensable preexisting injury may not be added as a compensable
component of a claim for workers’ compensation medical benefits merely
because it may have been aggravated by a compensable injury. To the extent
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that the aggravation of a noncompensable preexisting injury results in a
[discrete] new injury, that new injury may be found compensable.
236 W. Va. at 738, 783 S.E.2d at 858. However, Syllabus Point 5 of Moore elaborated on
Gill stating that,
[a] claimant's disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant's preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.
___ W. Va. at ___, 879 S.E.2d at 781.
In the present case, the record is devoid of evidence suggesting that Ms. Reynolds’
thoracic or lumbar spine were injured or symptomatic prior to her injury of September 21,
2020. Ms. Reynolds argues her compensable injury altered her spine and that her continued
medical treatment for the diagnosis of protrusion of the intervertebral disc is causally
related to her compensable injury. While there is some medical evidence to suggest that
this protrusion was the result of preexisting degenerative conditions, it still must be
determined if these preexisting conditions were, as Ms. Reynolds claims, asymptomatic
prior to the compensable injury.
Likewise, because the nature of the accident raises a presumption of causation
related to the symptoms that manifested after the injury, we find that the Board erred by
failing to apply Moore when considering compensability for the diagnosis of protrusion of
the intervertebral disc. As such, we vacate the Board’s decision and remand the matter for
further hearing. We find our application of Moore to be consistent with its recent
application in decisions by our Supreme Court of Appeals. See Click v. Arcelormittal USA,
No. 21-0128, 2022 WL 10219744, at * 3 (W. Va. Oct. 18, 2022) (memorandum decision)
(reversed and remanded to determine whether preexisting left knee meniscus tear was
asymptomatic at the time of compensable injury); McKinney v. Pinnacle Mining Co., No.
21-0222, 2022 WL 10219792, at * 4 (W. Va. Oct. 18, 2022) (memorandum decision)
(reversed and remanded to determine whether symptoms of an asymptomatic preexisting
condition were manifested as result of compensable injury); Owens v. Bundy Auger
Mining, Inc., 20-0664, 2022 WL 10218882, at *3 (W. Va. Oct. 18, 2022) (memorandum
decision) (reversed and remanded to determine whether current symptoms resulting from
degenerative conditions were asymptomatic prior the compensable injury).
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Further, we recognize that since the initial rulings in this case, the review process
for workers’ compensation claims has changed. West Virginia Code § 23-5-8a(a) (2022)
provides that,
[t]he Workers’ Compensation Office of Administrative Law Judges, referred
to as the Office of Judges, shall terminate on or before October 1, 2022, as
provided in §23-5-8b of this code. All powers and duties of the Office of
Judges to review objections, protests, or any other matter authorized by this
chapter, shall be transferred to the Workers’ Compensation Board of Review
on July 1, 2022: Provided, That any objection or other matter filed pursuant
to this chapter and pending before the Office of Judges upon its termination,
in which a final decision has not been issued, shall also be transferred to the
Workers’ Compensation Board of Review as provided in §23-5-8b of this
code.
Accordingly, we vacate and remand the case to the Board for further development of the
evidentiary record and analysis under Moore, consistent with this decision.
Vacated and Remanded with Directions.
ISSUED: February 15, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr, not participating
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