IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ALVIN J. COOK, JR., September 5, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-153 (JCN: 2016030652) OF WEST VIRGINIA
CECIL I. WALKER MACHINERY CO.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Alvin J. Cook appeals the March 20, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Cecil I. Walker Machinery Co.
(“CWMC”) filed a timely response. 1 Mr. Cook did not file a reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which denied the
addition of radiculopathy as a compensable condition and denied authorization for a lumbar
x-ray and a lumbar MRI.
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. Cook suffered a workplace injury on June 3, 2016, while employed by CWMC.
On June 8, 2016, the claim administrator issued an order holding the claim compensable
for lumbar strain. Prior to his 2016 injury, Mr. Cook was treated for back pain in 1990 and
a 2012 x-ray revealed degenerative disc disease in his lumbar spine.
On June 22, 2016, Mr. Cook underwent an MRI of his lumbar spine, which revealed
multilevel degenerative disc disease and spinal stenosis. Mr. Cook was seen by Rajesh
Patel, M.D., on June 29, 2016, at which time Mr. Cook reported pain in his lower back and
weakness in his back and left leg. Dr. Patel diagnosed Mr. Cook with lumbar sprain,
lumbago, lumbar spondylosis, annular tear L4-5, lumbar disc herniation L2-3, lumbar
stenosis L3-4, and neuroforaminal narrowing at L3-4 left side. Dr. Patel recommended
physical therapy, a back brace, and a referral to a pain clinic.
Mr. Cook is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
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CWMC is represented by Jeffrey B. Brannon, Esq.
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Andrew Thymius, D.O., treated Mr. Cook from September 2016 through October
2017. Dr. Thymius diagnosed Mr. Cook with multilevel degenerative disc disease,
spondylosis without myelopathy or radiculopathy in the lumbar and lumbosacral regions,
and lumbar stenosis. Dr. Thymius administered lumbar facet blocks at L3, L4, and L5 on
October 3, 2016, and October 18, 2016. On November 23, 2016, Mr. Cook underwent an
EMG/nerve conduction study, revealing evidence of left lumbosacral radiculopathy. On
December 28, 2016, Dr. Thymius performed a radiofrequency ablation at L3-4, L4-5, and
L5-S1.
On January 26, 2017, Prasadarao Mukkamala, M.D., saw Mr. Cook for an
independent medical examination (“IME”). Dr. Mukkamala diagnosed Mr. Cook with a
lumbar strain superimposed on preexisting degenerative spondyloarthropathy. Dr.
Mukkamala opined that Mr. Cook had reached his maximum degree of medical
improvement (“MMI”) for his compensable injury.
Mr. Cook was seen by Bruce Guberman, M.D., for an IME on July 18, 2017. Dr.
Guberman diagnosed Mr. Cook with chronic posttraumatic strain of the lumbar spine,
superimposed on preexisting degenerative joint disease and degenerative disc disease, and
he also diagnosed signs and symptoms consistent with left-sided lumbar radiculopathy. Dr.
Guberman opined that lumbar radiculopathy was related to Mr. Cook’s compensable injury
and that he had reached MMI.
On February 18, 2021, Mr. Cook was seen by Michael Muscari, M.D. Dr. Muscari
submitted a Diagnosis Update form on February 26, 2021, requesting the addition of low
back pain with radiculopathy, decreased range of motion, left leg pain, and numbness in
bilateral feet as compensable conditions. 2 Dr. Muscari also requested x-rays and an MRI
of the lumbar spine. By order dated May 7, 2021, the claim administrator denied the
diagnosis update and requested treatment. Mr. Cook protested this order. On May 19, 2021,
Dr. Muscari issued a report finding that Mr. Cook was experiencing decreased range of
motion, pain with movement, and shooting pains down the bilateral legs. Dr. Muscari again
opined that Mr. Cook required new x-rays and an MRI.
Mr. Cook was seen by David Soulsby, M.D., for an IME on October 31, 2022. Dr.
Soulsby opined that Mr. Cook sustained a lumbar strain as a result of the compensable
injury. He noted that Mr. Cook had degenerative disc disease and lumbar spinal stenosis
which were symptomatic prior to the injury. Dr. Soulsby opined that the symptoms of
radiculopathy were not due to the compensable injury and that the x-rays and MRI were
not necessary as the compensable condition was a lumbar strain.
On March 20, 2023, the Board issued an order affirming the claim administrator’s
order, which denied the addition of radiculopathy as a compensable condition and denied
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Only the requested diagnosis of radiculopathy is at issue in the instant appeal.
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authorization for a lumbar x-ray and a lumbar MRI. The Board found that Mr. Cook
failed to establish by a preponderance of the evidence that a diagnosis of radiculopathy was
supported because it found that he experienced similar symptoms years before the injury.
Further, the Board determined that the requested treatments were not medically necessary
and reasonably related to the compensable injury. Mr. Cook now appeals the Board’s order.
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, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).
On appeal, Mr. Cook argues that the evidence clearly established that he developed
radiculopathy as a result of his compensable injury. Mr. Cook further argues that although
he had prior lumbar symptoms, he had not been diagnosed with radiculopathy prior to his
compensable injury, reflecting that it is a discrete new injury. We disagree.
The Supreme Court held, in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d
857 (2016):
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.
Gill at 738, 783 S.E.2d at 858. syl. pt. 3
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The Court clarified its position in Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879
S.E. 2d 779 (2022), 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
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.
Moore at ___, 879 S.E.2d at 781. syl. pt. 5
The Board found that Mr. Cook had not established by a preponderance of the
evidence that radiculopathy was related to his compensable injury. The Board noted that
the compensable injury of a lumbar strain occurred six years prior to Mr. Cook’s request
to add radiculopathy to the claim as a compensable condition. The Board also noted Mr.
Cook’s history of lumbar symptoms dating back to 1989 and the radiographic findings of
degenerative changes to his lumbar spine. The Board found that under the guidance of Gill
and Moore, the evidence does not support the addition of radiculopathy as a compensable
condition. Further, the Board found that Mr. Cook failed to establish that the request for a
lumbar x-ray and MRI were medically necessary and reasonably related to the
compensable injury.
Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Cook failed to establish by a preponderance of the evidence that a diagnosis of
radiculopathy was causally related to the compensable injury and that the requested
treatments were medically necessary and reasonably related to the compensable injury.
Finding no error in the Board’s March 20, 2023, order, we affirm.
Affirmed.
ISSUED: September 5, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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