IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
KEVIN MILLER, FILED
Claimant Below, Petitioner March 6, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-180 (JCN: 2020024251) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
GRANT COUNTY MULCH, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Kevin Miller appeals the September 21, 2022, order of the Workers’
Compensation Board of Review (“Board”). Mr. Miller’s employer, Respondent Grant
County Mulch, Inc., filed a timely response. 1 Mr. Miller filed a timely reply.
The issue on appeal is whether the Board erred in affirming the claim
administrator’s order that denied the addition of cervicalgia, spondylosis without
myelopathy or radiculopathy lumbar region, spondylosis without myelopathy or
radiculopathy thoracic region, and other deforming dorsopathies as compensable
components of Mr. Miller’s Workers’ Compensation claim.
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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Mr. Miller was injured on May 6, 2020, while employed by Grant County Mulch,
Inc. Mr. Miller was operating a forklift and hit a large hole, which jarred him and caused
pain from his neck to his tailbone. Mr. Miller had also suffered a prior back injury in 2012.
Mr. Miller was seen, on the same day as his injury, at Preston Healthcare Services.
He complained of pain in the cervical, thoracic, and lumbar spine. Mr. Miller was
diagnosed with cervicalgia, pain in the thoracic spine, and low back pain. X-rays of the
cervical, thoracic and lumbar spine were completed, which revealed mild cervical
curvature, mild thoracolumbar curvature, and degenerative disc disease in the thoracic and
lumbar spine areas. A request for authorization for MRIs of the cervical, thoracic and
Petitioner is represented by Sandra K. Law, Esq. Respondent is represented by
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Jane Ann Pancake, Esq. and Jeffrey B. Brannon, Esq.
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lumbar spine, as well as a request for referral to the Spine Center, were submitted to the
claim administrator.
Mr. Miller returned to Preston Healthcare Services ten times between May 19, 2020,
and February 17, 2021. He indicated that he was still experiencing pain in the cervical and
lumbar spine areas, and he was now experiencing numbness and pain in the upper and
lower extremities. Mr. Miller also stated that he had difficulty walking and standing at
times.
On June 2, 2020, the claim administrator issued an order holding the claim
compensable for cervical strain/sprain.
Mr. Miller underwent an MRI of the cervical spine on June 7, 2020. The MRI was
unremarkable.
Elysia Stoneman, NP, submitted a Diagnosis Update Form dated November 9, 2020,
which requested that diagnoses of cervicalgia, spondylosis without myelopathy or
radiculopathy lumbar region, spondylosis without myelopathy or radiculopathy thoracic
region, and other deforming dorsopathies be added as compensable components of the
claim.
Mr. Miller underwent MRIs of the thoracic and lumbar spine on December 3, 2020.
The thoracic MRI revealed arthritic changes. The lumbar MRI revealed disc bulges at L3-
4 and L4-5 and other degenerative changes.
On December 18, 2020, Mr. Miller was evaluated by Meredith C. Liddle, PA-C.
Mr. Miller reported numbness in his hand; a pain rating of 9-10/10; and that prolonged
lying, sitting, standing and any physical activity exacerbated the pain. Ms. Liddle's
examination revealed pain in the cervical spine with range of motion, and weakness in the
muscle groups tested, a flat affect, and chronic back pain, and recommended a pain
management referral.
Mr. Miller was seen on March 10, 2021, by Chuan Fang Jin, M.D., for an
independent medical examination at the request of the claim administrator. Dr. Jin noted a
history of a mechanical incident at work on May 6, 2020. Dr. Jin diagnosed Mr. Miller
with cervical sprain/strain, preexisting degenerative disc disease involving the spine, and
chronic pain. Dr. Jin calculated a range of motion impairment of 15% whole person
impairment, but then opined that Mr. Miller’s limited range of motion of the spine was
likely a mix of pain, fear of pain, and preexistent degenerative spine disease, so she found
that Mr. Miller had 0% whole person impairment for the compensable injury.
The claim administrator issued an order dated October 13, 2021, denying the
addition of cervicalgia, spondylosis without myelopathy or radiculopathy lumbar region,
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spondylosis without myelopathy or radiculopathy thoracic region, and other deforming
dorsopathies as compensable components of the claim.
On September 21, 2022, the Board affirmed the claim administrator’s order and
found that the medical evidence did not establish that the compensable injury was related
to the additional diagnoses and that Mr. Miller was not entitled to the presumption under
Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) (if a preexisting
condition was asymptomatic prior to the workplace injury and symptoms have
continuously manifested after the injury, it is presumed that the disability resulted from the
compensable injury). Mr. Miller now appeals the order of the Board.
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).
On appeal, Mr. Miller argues that the Board misapplied Moore and that he is entitled
to the presumption under Moore because his prior injury and preexisting degenerative disc
disease were asymptomatic.
The Supreme Court of Appeals held 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 that the aggravation of a noncompensable preexisting
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injury results in a discrete new injury, that new injury may be found
compensable.
Syl. Pt. 3. Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016).
In Moore, the Supreme Court of Appeals held 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.
Syl. Pt. 5. Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779
(2022).
Further, in Moore, the Court clarified that even if a claimant is entitled to this
rebuttable presumption, “a claimant has the burden of proving that the compensable injury
exacerbated, accelerated, or worsened the preexisting injury or disease causing a new
distinct injury.” Id., 879 S.E.2d. at 788.
After review, we conclude that the Board was not clearly wrong in finding that Mr.
Miller is not entitled to the presumption in Moore as the evidence submitted by the
employer rebutted the presumption. The Board did not err in finding that cervicalgia is
another name for neck pain, which is a symptom and, therefore, not an appropriate
compensable condition in this claim. Regarding lumbar spondylosis without radiculopathy,
thoracic spondylosis without radiculopathy and “other deforming dorsopathies,” the Board
did not err in finding that these conditions preexisted the compensable injury and were not
discrete new injuries as required by Gill.
Finding no error in the Board’s September 21, 2022, order, we affirm.
Affirmed.
ISSUED: March 6, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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