IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ICG BECKLEY, LLC, May 1, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-326 (JCN: 2022002109)
ARTHUR DAVIS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner ICG Beckley, LLC (“ICG”) appeals the November 23, 2022, order of the
Workers’ Compensation Board of Review (“Board”) reversing multiple orders of the claim
administrator. Respondent Arthur Davis filed a timely response.1 ICG did not file a reply.
The issues on appeal are whether the Board erred in reversing the following: 1) the
claim administrator’s order dated October 21, 2021, that denied a request for
transforaminal epidural injections at L5-S1, and bilateral medial branch nerve blocks at
L3-S1; 2) the claim administrator’s order dated October 25, 2021, that denied a request for
a brace; 3) the claim administrator’s order dated March 1, 2022, that closed the claim for
temporary total disability (“TTD”) benefits; and 4) the claim administrator’s order dated
March 18, 2022, that denied a request to add radiculopathy, lumbosacral region, as a
compensable condition in the claim.2
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
1
Petitioner is represented by Charles R. Bailey, Esq., John P. Fuller, Esq., and
Celeste E. Webb, Esq. Respondent is represented by Reginald D. Henry, Esq. and Lori J.
Withrow, Esq.
2
ICG does not appeal the following issues: 1) the Board’s affirmation of the claim
administrator’s order dated September 30, 2021, denying a request to add lumbar
intervertebral disc syndrome and lumbosacral intervertebral disc syndrome as compensable
conditions in the claim; 2) the Board’s reversal of the claim administrator’s order dated
February 18, 2022, denying authorization for physical therapy; or 3) the Board’s dismissal
of Mr. Davis’ protest to the claim administrator’s order dated March 15, 2022, denying a
request to reinstate TTD benefits, as moot.
1
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Mr. Davis, a scoop operator for ICG, injured his low back on July 23, 2021, when
he ran over a large rock while operating a piece of equipment. By order dated August 10,
2021, the claim administrator held the claim compensable for sprain of ligaments of the
lumbar spine, and granted TTD benefits from July 26, 2021, through Mr. Davis’ release to
return to work.
On August 23, 2021, Rocky Sexton, D.C., completed a Diagnosis Update requesting
that lumbosacral sprain/strain, lumbar intervertebral disc syndrome, and lumbosacral
intervertebral disc syndrome be added as compensable conditions in the claim. On October
6, 2021, Rajesh V. Patel, M.D., an orthopedic spine surgeon, examined Mr. Davis. Based
on a review of a lumbar MRI and X-rays from August 3, 2021, Dr. Patel noted a disc
protrusion at L5-S1 with lateral recess narrowing due to the protrusion and S1 nerve root
impingement. Dr. Patel recommended medial branch blocks and epidural injections to treat
Mr. Davis’ back pain that chiropractic treatment had not resolved. Dr. Patel also
recommended a back brace to provide support, improve posture, and reduce motion in
order to reduce pain. In addition to these treatments, Dr. Patel recommended a continuation
of physical therapy with chiropractic options. The assessment from the visit included
lumbar disc herniation at L5-S1 on the right, S1 radiculopathy on the right, lumbar facet
sprain, lumbar sprain, lumbar disc desiccation at L5-S1, and lumbar disc protrusion on the
left at L4-L5.
By order dated September 30, 2021, the claim administrator denied the request to
add lumbar intervertebral disc syndrome and lumbosacral intervertebral disc syndrome as
compensable conditions in the claim. The order was based on an independent medical
evaluation (“IME”) by Prasadarao B. Mukkamala, M.D., dated September 22, 2021.3 Mr.
Davis protested this order.
On October 21, 2021, the claim administrator denied Dr. Patel’s request for
transforaminal epidural injections at L5-S1 and S1, and bilateral medial branch nerve
blocks at L3-S1 based on a physician advisor decision dated October 21, 2021. In this
medical review report, Cyrus Kao, M.D., recommended that the claim administrator deny
the request for injections as the Official Disability Guidelines do not recommend injections
for back pain without radicular symptoms. Dr. Kao also determined that the medial branch
nerve blocks were being used to treat facet pain, although imaging of Mr. Davis’ lumbar
spine did not reflect a large component of facet disease. Mr. Davis protested the claim
administrator’s order.
3
Dr. Mukkamala’s IME report dated September 22, 2021, is not included in either
party’s Appendix before this Court, but was included in the Board’s record.
2
On October 25, 2021, the claim administrator issued an order denying authorization
for a brace based on Dr. Mukkamala’s report dated September 22, 2021. Mr. Davis
protested this order.
On January 25, 2022, Dr. Mukkamala examined Mr. Davis for the allowed condition
of a lumbar sprain. Dr. Mukkamala admitted that the MRI revealed a lumbar disc
herniation/disc protrusion and disc desiccation. However, he contended that these findings
were related to preexisting and degenerative spondyloarthropathy rather than to the work
injury. Although he admitted that Mr. Davis did not experience back pain until the injury,
Dr. Mukkamala asserted that the disc herniation was preexisting, and was not causally
related to the soft tissue injury that resulted when Mr. Davis ran over a rock in a scoop.
Further, Dr. Mukkamala opined that no further treatment was required for the compensable
injury, and that Mr. Davis was at maximum medical improvement (“MMI”). A three
percent whole person impairment was calculated for the compensable injury. Finally, Dr.
Mukkamala determined that Mr. Davis was capable of returning to work with no
restrictions.
On March 1, 2022, the claim administrator closed the claim for TTD benefits.4 Mr.
Davis protested this order.
By order dated March 18, 2022, the claim administrator denied Dr. Patel’s request
to add L5-S1 protrusion/herniation on the right and radiculopathy lumbosacral region as
compensable conditions in the claim. The claim administrator’s determination was based
on Dr. Mukkamala’s IME report dated September 22, 2021.
On March 23, 2022, Dr. Patel expressed his disagreement with Dr. Mukkamala’s
recent finding that Mr. Davis was at MMI. Dr. Patel explained that epidural injections,
which had been denied, work best if performed in a timely fashion.
4
Although ICG appeals the Board’s reversal of the claim administrator’s orders
dated October 25, 2021, and March 1, 2022, denying a brace, and closing the claim for
TTD, respectively, it did not include either order in its Appendix. The Board’s order failed
to provide the basis the claim administrator gave for its orders. ICG alleges that the brace
was denied based on a report by Dr. Mukkamala dated September 22, 2021, which ICG
also failed to include in its Appendix. Further, ICG asserts that TTD benefits were
terminated based on Dr. Mukkamala’s finding on January 25, 2022, that Mr. Davis was at
MMI. Dr. Mukkamala’s report from that IME is in ICG’s Appendix. Having no reason to
doubt ICG’s assertions regarding the claim administrator’s basis for its orders, it is not
necessary to supplement the record in this appeal. However, in the future, the Board should
include in its order the basis given by the claim administrator for its order, and parties are
advised to ensure their Appendices are complete.
3
On May 9, 2022, Christopher Martin, M.D., authored a medical review report in
which he stated that the mechanism of the injury was consistent with a lumbar sprain/strain.
Dr. Martin opined that the disc protrusions at L4-L5 and L5-S1 did not result from the
workplace injury and that Mr. Davis’ physical findings did not support a diagnosis of
radiculopathy. Dr. Martin also determined that no further treatments were required for the
compensable injury.
In a letter dated July 28, 2022, Dr. Patel noted that Mr. Davis had described low
back pain with right leg numbness and weakness since the work injury. Further, Dr. Patel
commented that a lumbar MRI revealed a disc protrusion at L5-S1 with S1 nerve root
impingement with a minimal amount of desiccation, but showed the L4-L5 disc was well
preserved. Dr. Patel correlated Mr. Davis’ clinical symptoms with the MRI findings, noting
that the symptoms were consistent with an acute L5-S1 disc protrusion and radiculopathy.
Importantly, Dr. Patel observed that until the injury, Mr. Davis was performing heavy work
without difficulty and he did not seek treatment for his lower back until after the injury.
Thus, Dr. Patel determined that the workplace injury most likely caused the disc protrusion
and radiculopathy. Alternatively, Dr. Patel asserted that if the L5-S1 disc protrusion was
preexisting, the work injury caused the active radiculopathy on the right side. Thus, Dr.
Patel opined that in either scenario, the diagnoses of S1 radiculopathy and L5-S1 disc
protrusion should be ruled compensable. Further, he asserted that treatment, including
injections, physical therapy, and possibly surgery, should be covered in the claim.
Mr. Davis testified in a deposition on July 6, 2022, that he was forty-five years old
and to the best of his knowledge, prior to July 23, 2021, he had never suffered a lumbar
spine injury, nor had he undergone any diagnostic testing of his lumbar spine.5 According
to Mr. Davis, he was injured while operating a scoop with a canopy or top that was too low
for him to sit straight up. Thus, he was in a bent-over position, “sitting on the bottom of
[his] back.” Mr. Davis testified that he ran over a rock approximately twelve or fourteen
inches high, which caused him to be thrown around inside the cab, causing him immediate
back pain.
On November 23, 2022, the Board reversed the claim administrator’s orders dated
October 21, 2021, and October 25, 2021, and authorized the request for transforaminal
epidural injections at L5-S1, bilateral medial branch nerve blocks at L3-S1 and a brace.
The Board also reversed the claim administrator’s order dated March 1, 2022, and
reinstated TTD benefits as of the date they were suspended. The claim administrator’s
order dated March 18, 2022, was reversed in part, such that radiculopathy lumbosacral
region was ruled compensable by the Board, and the order was affirmed, in part, insofar as
it denied lumbosacral protrusion/herniation.
5
The Board’s order failed to provide any discussion about Mr. Davis’ testimony,
although, in relevant part, he elaborated on the circumstances of his injury and confirmed
that he had no prior lumbar injury or treatment.
4
The Board determined that Mr. Davis did not have prior injuries, symptoms, or
treatment of his lumbar spine until the workplace injury occurred. Thus, the Board
determined that lumbar radiculopathy did not preexist the workplace injury and the
condition was a discrete new injury. On the other hand, the Board determined that the disc
herniation and bulges at L3-L4, L4-L5, and L5-S1 preexisted the injury and were not
causally related to it. With respect to treatment, the Board determined that the epidural
injections, medial branch blocks, back brace, and physical therapy were treatments that
were medically related and reasonably required for the compensable injury. Further, the
Board found that the claim administrator incorrectly terminated TTD benefits based on Dr.
Mukkamala’s placement of Mr. Davis at MMI on January 25, 2022, which failed to
consider the compensable condition of lumbosacral radiculopathy. The Board also noted
that on March 23, 2022, Dr. Patel disagreed with Dr. Mukkamala’s opinion that Mr. Davis
had reached MMI. ICG now appeals the Board’s order except for the rulings noted in
footnote two of this decision.
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).
On appeal, ICG argues that the Board was clearly wrong in reversing the claim
administrator’s orders and awarding diagnoses and treatments that were unrelated to the
compensable injury. ICG contends that the radiculopathy of the lumbosacral region was
properly denied by the claim administrator’s order dated March 18, 2022. Specifically, ICG
contends that Dr. Mukkamala indicated in his January 25, 2022, report that the MRI
revealed preexisting degenerative spondyloarthropathy, a condition that was unrelated to
the compensable injury. ICG also asserts that it is only responsible for providing treatment
5
related to compensable injuries and that the transforaminal epidural injections, bilateral
medial branch blocks, and brace were treatments for preexisting degenerative disc disease
and not the work-related lumbar sprain/strain. Additionally, ICG argues that Dr.
Mukkamala determined Mr. Davis was at MMI and required no further treatment for the
compensable injury. Lastly, ICG argues that Mr. Davis was not entitled to TTD benefits
after Dr. Mukkamala placed him at MMI.
After review, we conclude that the Board was not clearly wrong in finding lumbar
radiculopathy to be a compensable diagnosis in the claim as Mr. Davis did not have a prior
history of low back symptoms or treatment, and radiculopathy was a distinct new injury.
See Syl. Pt. 3, Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016). Further,
we find that the Board was not clearly wrong in ruling that the treatments were medically
related and reasonably required for the compensable injury and that the claim should not
have been closed for TTD benefits because it had not been correctly determined that Mr.
Davis was at MMI for radiculopathy.
Finding no error in the Board’s November 23, 2022, order, we affirm.
Affirmed.
ISSUED: May 1, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
6