Justices: Comp board right in denying underlying conditions

By Kyla Asbury | Nov 30, 2016

CHARLESTON – The West Virginia Supreme Court of Appeals has issued a ruling that the West Virginia Workers’ Compensation Board of Review did not err in denying two conditions as compensable conditions in a case involving Lifepoint Hospitals and a certified nursing assistant.

The justices entered the memorandum decision Nov. 29.

Stephanie Nickell was injured on May 28, 2012, while assisting a co-worker in lifting an extremely obese patient. The claim was held compensable for a low back sprain and Nickell first sought treatment from Patsy Fairchild on June 14, 2012.

Nickell proved Fairchild with a history of being diagnosed with a herniated/bulging disc about five or six years prior to her work injury and advised Fairchild that surgery was recommended at that time.

Fairchild diagnosed Nickell with sciatica and performed a lumbar spine x-ray on June 21, 2012, which revealed grade 1 anterior spondylolisthesis of L5 over S1 with no obvious posterior element defects of L5, narrow L4-L5-S1 disc spaces and no fracture or primary spinal stenosis.

On Aug. 23, 2012, a lumbar MRI was performed and it revealed a right paracentral and foraminal disc protrusion at L5-S1 with mild narrowing of the neural foramen effacing the L5 nerve, pars defects at L5 with mild grade 1 anterolisthesis of L5 on S1 and a shallow posterior disc protrusion at L4-L5.

On Oct. 4, 2012, Dr. John Schmidt evaluated Nickell and diagnosed her with low back pain with mild degenerative disc disease at L4-L5 and L5-S1 with a hint of listhesis at L5-S1. On Jan. 30, 2013, Dr. Paul Backwitt performed an independent medical evaluation and diagnosed her with a lumbar sprain/strain due to the work injury.

Backwitt also opined that Nickell had existing degenerative disc disease of the lumbar spine that was unrelated to the injury. Another physician performed another independent medical evaluation on June 6, 2014, and also said that Nickell’s ongoing symptoms were related to her underlying degenerative condition and not the May 28, 2012, injury.

In its May 7, 2014, order, the Office of Judges found that the secondary conditions of spondylolistheis at L5-S1 and disc protrusion/displacement were denied because they were pre-existing. The OOJ then found that the request for a neurological referral was also proper.

The Board of Review agreed with the findings and conclusions of law of the OOJ and affirmed the OOJ’s order on Oct. 28, 2015.

“For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record,” the decision states.

W.Va. Supreme Court of Appeals case number: 15-1136

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