CHARLESTON — The West Virginia Supreme Court of Appeals agreed with the West Virginia Office of Judges and the Workers' Compensation Board of Review in its denial of additional claims in a claimant's case.
The Supreme Court found 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.
David W. Miller, a heavy equipment fueler, was injured in the course of his employment on Aug. 23, 2013, according to the Supreme Court decision.
The treatment notes from Raleigh General Emergency Hospital that day indicate Miller reported an injury to his lower back while pulling on a hose, the decision states. Miller claimed he had pain in his lower back and down his right leg and was diagnosed with degenerative disc disease, for which he sought treatment.
Dr. Michael Kominsky found that Miller was temporarily and totally disabled and that he had sustained an aggravation of a 2012 injury and his injury report.
Miller was treated by other physicians over the next several years and saw Dr. Sara Mooney on Nov. 5, 2015, who diagnosed lumbar sprain and lumbar radiculopathy at L5. During a record review on April 19, 2016, Dr. Rebecca Thaxton recommended that physical therapy be denied, noting that the accepted diagnoses in the claim were lumbar contusion and lumbar sprain/strain.
Thaxton recommended Dr. Paul Bachwitt comment on the need for further physical therapy in his upcoming evaluation and during that independent medical evaluation that occurred on May 16, 2016, he stated that the medical documentation did not support a causal connection between the 2013 injury and Miller’s current symptoms.
Kominsky later completed a diagnosis update and requested that lumbar disc displacement and lumbar radiculopathy be added to the claim. He stated that the diagnoses were based on the EMG study. Thaxton argued the diagnoses should not be added to the claim and that the tests conflicted with each other.
The claims administrator denied the additional diagnoses and, in 2017, again denied new diagnoses.
"After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review," the Supreme Court wrote. "The diagnostic tests of record are in conflict."
The Supreme Court ruled the Office of Judges, and by extension Board of Review, was correct to find that a preponderance of the evidence indicates lumbar disc displacement and lumbar radiculopathy should not be added to the claim.
West Virginia Supreme Court of Appeals Case number: 18-0802