IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
2023 Spring Term May 1, 2023
released at 3:00 p.m.
_____________________________ EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
No. 22-ICA-262
_____________________________
BLACKHAWK MINING, LLC,
Employer Below, Petitioner
v.
HARRIS ARGABRIGHT,
Claimant Below, Respondent
__________________________________________________________________
Appeal from the Workers’ Compensation Board of Review
(Appeal No.: 2058334)
(JCN: 2021020512)
REVERSED, in part, AFFIRMED, in part.
__________________________________________________________________
Submitted: March 22, 2023
Filed: May 1, 2023
Jeffrey B. Brannon, Esq. Lori J. Withrow, Esq.
Cipriani & Werner PC Reginald D. Henry, Esq.
Charleston, West Virginia Reginald D. Henry, PLLC
Counsel for Petitioner Mabscott, West Virginia
Counsel for Respondent
CHIEF JUDGE GREEAR delivered the Opinion of the Court.
GREEAR, Chief Judge:
Petitioner, Blackhawk Mining, LLC, (“Blackhawk”) appeals the Workers’
Compensation Board of Review (“BOR”) affirmation of the Workers’ Compensation
Office of Judges’ (“OOJ”) order adding the diagnoses of disc bulges from L2-L3 through
L5-S1 as compensable conditions and authorizing the request for a referral to Rajesh Patel,
M.D. Based upon the parties’ arguments, the record on appeal, and the applicable law, this
Court finds that the BOR’s October 21, 2022, order is clearly wrong in finding that the disc
bulges are compensable conditions, but not clearly wrong in ordering a referral to Dr. Patel.
Accordingly, we hereby reverse, in part, and affirm, in part, the BOR’s October 21, 2022,
order.
I. Factual and Procedural Background
Respondent Harris Argabright, an electrician for Blackhawk Mining, was injured at
work on February 26, 2021, when he tightened a strap on a speed reducer and felt
something pull in his lower back/pelvis. Mr. Argabright sought medical treatment that day
and was diagnosed with a lumbar sprain. X-rays revealed no acute abnormality, mild L3-
L4 disc space narrowing, mild L5-S1 disc space narrowing, and bilateral facet arthropathy.
On March 9, 2021, Mr. Argabright underwent an MRI of his lumbar spine. The
impression of the MRI showed degenerative disc desiccation and suggestion of mild disc
bulge at T11-T12, and minimal to mild disc bulges from L2-L3 through L5-S1. On April
26, 2021, Mr. Argabright saw Jeffrey Prichard, PA-C, and reported low back pain with
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decreased range of motion that was not improving. He was diagnosed with a lumbar sprain.
On April 29, 2021, Michael Muscari, D.O., requested that Mr. Argabright be referred to
Dr. Patel, noting an increase of pain, a decrease in range of motion, and a worsening
symptoms.
Prasadarao Mukkamala, M.D., performed an independent medical examination
(“IME”) of Mr. Argabright on May 11, 2021. Dr. Mukkamala diagnosed lumbar sprain
superimposed upon preexisting noncompensable degenerative spondyloarthropathy, and
found that Mr. Argabright had reached Maximum Medical Improvement (“MMI”). Dr.
Mukkamala assessed him with an 8% whole person impairment and apportioned 5% to
preexisting conditions. Dr. Mukkamala also found there was no indication to refer Mr.
Argabright for surgery or any other treatment, as there was no objective evidence of
radiculopathy and no spinal instability. Based on this report, the claim administrator issued
an order dated May 17, 2021, which denied the request for a referral to Dr. Patel. Mr.
Argabright protested this order.
On June 21, 2021, Dr. Muscari submitted a diagnosis update requesting that “disc
bulge L2, L3, L5, S1” be added as compensable conditions in the claim on the basis that
the MRI showed multiple disc bulges. 1 By order dated July 1, 2021, the claim administrator
denied this request. Mr. Argabright protested this order. Mr. Argabright submitted
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Dr. Muscari’s diagnosis update fails to add the disc bulge at L4 as a compensable
condition. However, the OOJ and the BOR found the disc bulge at L4 to be compensable.
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correspondence from Dr. Muscari explaining that the referral to Dr. Patel was necessary
because of Mr. Argabright’s continuing symptoms and disability. Further, Dr. Muscari
explained therein that Mr. Argabright was able to work his entire adult life as a coal miner
prior to this work-related injury and had no previous lumbar pain.
On January 15, 2022, Michael Brooks, M.D. issued an age of injury analysis upon
review of the March 9, 2021, MRI. Dr. Brooks opined that the findings on the MRI were
consistent with chronic, degenerative disc disease and facet joint arthrosis.
On May 19, 2022, the OOJ reversed the claim administrator’s orders, found the disc
bulges at L2-L3 through L5-S1 to be compensable, and ordered a referral to Dr. Patel. The
OOJ reasoned that Mr. Argabright’s preexisting disease or condition was asymptomatic
prior to the compensable injury, but after that injury, his symptoms appeared and were
continuously manifested. The OOJ found that based on the preponderance of the evidence,
Mr. Argabright had shown that the disc bulges at L2-3 through L5-S1 should be held
compensable, and that the referral to Dr. Patel was medically related and reasonably
required. The BOR affirmed the OOJ’s decision in its October 21, 2022, order. It is from
that order that Blackhawk now appeals. Blackhawk’s appeal is limited solely to the issue
of compensability of the disc bulges; it does not appeal the referral to Dr. Patel. 2
Blackhawk’s brief makes clear that the appeal is solely on the issue of the
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compensability of the disc budges.
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II. Standard of Review
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, 247 W. Va. 550, __, 882 S.E.2d 916, 921, (Ct. App.
2022).
III. Discussion
On appeal, Blackhawk asserts that the BOR committed clear legal error in its
determination that Mr. Argabright’s disc bulges at L2-L3 through L5-S1 were
compensable. Blackhawk argues that the preponderance of the evidence establishes these
conditions were chronic and preexisting and, while aggravated or exacerbated, were not
discrete new injuries, and thus, not compensable.
In response, Mr. Argabright’s argument is twofold. First, he argues that there is a
lack of evidence in the record to show the bulging discs existed prior to his compensable
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injury. Second, he argues compensability under Moore v. ICG Tygart Valley, LLC, 247 W.
Va. 292, 879 S.E.2d 779 (2022) based on the manifestation of his symptoms after the
compensable injury.
We must first address the sufficiency of the evidence to support a determination that
Mr. Argabright’s disc bulges were caused by the compensable injury. The March 9, 2021,
MRI report revealed degenerative disc desiccation, as well as minimal to mild disc bulges.
There is no indication in that report that his injuries were of a traumatic nature. Dr.
Mukkamala, after completing an IME of Mr. Argabright and reviewing relevant records,
diagnosed Mr. Argabright with lumbar sprain superimposed upon preexisting degenerative
spondyloarthropathy. Dr. Mukkamala found that while the lumbar sprain was caused by
the compensable injury, the degenerative condition was preexisting. Dr. Brooks authored
an age of injury analysis and determined that Mr. Argabright suffered from chronic
degenerative disc disease and chronic facet joint arthrosis from L2-3 through L5-S1. The
MRI and the reports of Drs. Mukkamala and Brooks support a conclusion that the disc
bulges were preexisting.
In contrast, Mr. Argabright argues that the diagnosis update form completed by the
treating physician, Dr. Muscari, is evidence that the disc bulges were caused by the
compensable injury. However, neither the diagnosis update nor the other documents from
Dr. Muscari that were made a part of the record specifically opined that the disc bulges
were caused by the compensable injury, or offered any explanation that would support such
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conclusion. In short, Dr. Muscari asked the disc bulges to be made compensable with
minimal justification for the request.
Mr. Argabright’s argument that the disc bulges did not exist prior to the
compensable injury is not supported by the clear weight of the evidence. To the extent that
the BOR’s order finds that the disc bulges were caused by the compensable injury, that
finding is clearly wrong.
Next, Mr. Argabright argues that because his preexisting condition was
asymptomatic until the compensable injury, his preexisting disc bulges should be found
compensable under the rebuttable presumption announced in Moore. We disagree. Mr.
Agrabright’s argument fails to consider the Moore presumption in unison with the Supreme
Court of Appeals of West Virginia’s (“SCAWV”) ruling in Gill v. City of Charleston, 236
W. Va. 737, 783 S.E.2d 857 (2016), which Moore explicitly reaffirmed:
“[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 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).
Syl. Pt. 4, Moore, 247 W. Va. 292, 879 S.E.2d 779 (2022). The Moore Court then
expanded on Gill, holding:
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
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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 other facts of the
case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.
Syl. Pt. 5, 247 W. Va. 292, 879 S.E. 2d 779 (2022).
Gill unambiguously held that a discrete new injury may be compensable when it
arises from an aggravation of a preexisting injury. The preexisting condition itself does not
become compensable, only the discrete new injury. Moore reaffirmed and expanded on the
holding in Gill and therefore the holdings in both cases must be considered together. When
read in unison, Gill and Moore do not render preexisting injuries compensable.
Compensability is limited only to discrete new injuries and disabilities that manifest
following the compensable injury.
Here, the BOR only addressed syllabus point five of Moore and determined the
compensability of Mr. Argabright’s preexisting disc bulges based on the manifestation of
his symptoms following the compensable injury. Because the BOR did not consider Moore
and Gill together, we reverse the BOR’s order, in part, and find that it erred in summarily
concluding that Mr. Argabright’s preexisting disc bulges were compensable.
Even though the disc bulges are not compensable under this analysis, the treatment
of the newly symptomatic disability is appropriate. In Moore, the SCAWV found cervical
radiculopathy as a compensable condition, not the preexisting cervical degenerative disc
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disease that was asymptomatic prior to the compensable injury. It reasoned that the
evidence showed the compensable injury caused Mr. Moore to develop cervical
radiculopathy, a new distinct injury. Here, Mr. Argabright’s preexisting discs and
degenerative disc desiccation were asymptomatic prior to the compensable injury.
Following the compensable injury, Mr. Argabright developed pain in the areas affected by
the preexisting conditions. The treatment of that pain is presumed to flow from the
compensable injury, not the preexisting condition. In this matter, Blackhawk did not rebut
the presumption, nor did it contest the order for referral to Dr. Patel on appeal. 3
Accordingly, we affirm the BOR’s order, in part, with respect to the referral to Dr. Patel at
the pain clinic.
Wherefore, based on the foregoing, we reverse, in part, and affirm, in part, the
BOR’s October 21, 2022, order.
Reversed, in part, Affirmed, in part.
3
Blackhawk does not appeal the referral to Dr. Patel. Thus, this issue will not be
addressed by this Court. See Wheeling Park Commission v. Dattoli, 237 W.Va. 275 n.2,
787 S.E.2d 546 n.2 (2016) (citing Rule 10(d) of the West Virginia Rules of Appellate
Procedure).
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