The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MARILYN McKINNEY, January 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-78 (BOR Appeal No.: 2057922)
(JCN: 2017014532)
LITTLE GENERAL STORE, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Marilyn McKinney appeals the order of the Workers’ Compensation
Board of Review (“Board”) dated August 8, 2022, which, in pertinent part, affirmed the
Office of Judge’s (“OOJ”) decision dated February 7, 2022, adding cervical and lumbar
sprain as compensable conditions in the claim, but denying the addition of chronic
posttraumatic strain of the cervical spine superimposed on preexisting, but dormant,
degenerative joint and disc disease, and chronic posttraumatic strain of the lumbosacral
spine superimposed on preexisting, but dormant, degenerative joint and disc disease.1
Respondent Little General Store, Inc., filed a timely response.2 Ms. McKinney did not file
a reply brief.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 5111-
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 lower tribunal’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Ms. McKinney was injured when she slipped and fell while working at Little General
Store, Inc. on December 9, 2016, suffering injuries to her right hip, right shoulder, right arm,
and back. S. Brett Whitfield, M.D., an orthopedic surgeon, examined Ms.
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The Board modified the OOJ’s ruling that affirmed a 2% permanent partial
disability award (“PPD”), and returned the issue to litigation, concluding that the OOJ’s
ruling was premature as additional evidence is needed since the newly added conditions
were not evaluated. Ms. McKinney does not assign error to this ruling.
2
Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by
Charles R. Bailey, Esq., John P. Fuller, Esq., and Celeste E. Webb, Esq.
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McKinney for the injuries on December 22, 2016. Ms. McKinney reported to Dr. Whitfield
that she did not have pain in her right shoulder, right elbow, right hip, and low back until
she fell at work. In addition to diagnoses related to Ms. McKinney’s upper extremity and
right hip, Dr. Whitfield also diagnosed a low back muscular strain noting that she likely
twisted her back in the fall.
On February 20, 2017, an MRI of the lumbar spine revealed multilevel disc
degeneration without a disc herniation. Among the findings of a cervical MRI performed
on March 22, 2017, were degenerative disc disease and spondylosis, as well as shallow disc
protrusions at C3-4 and C4-5. Also, broad-based, mixed spondylitic disc protrusions
contacting the spinal cord at C5-C6 and C6-C7 were noted. A second MRI of the lumbar
spine performed on April 16, 2018, showed degenerative changes with areas of neural
foraminal narrowing, slightly worsening in the interval between this imaging and that
performed in February 2017.
On October 30, 2018, Ms. McKinney underwent discectomies at C5-C6 and C6-C7
and a fusion from C5 through C7 performed by Rajesh Vitthal Patel, M.D. Dr. Patel’s
postoperative diagnoses were cervical disc protrusions at C5, C6, and C7, with
radiculopathy at those levels and possible early myelopathy. He also diagnosed
neuroforaminal stenosis at the aforementioned levels of the cervical spine.
Christopher Martin, M.D. performed an independent medical evaluation of Ms.
McKinney on June 30, 2020. After examining Ms. McKinney and reviewing the medical
records from the claim, Dr. Martin opined that he did not find support for any diagnosis
related to the cervical spine or lumbar spine that was related to the work accident on
November 23, 2016. In part, Dr. Martin’s rationale was based upon the MRI studies that
showed cervical spondylosis, which he said was an age-related, degenerative condition and
not a post-traumatic abnormality. Additionally, Dr. Martin did not feel that the cervical
surgery and other treatments were medically necessary as a result of the compensable
injury.
It appears that the claim administrator did not issue a compensability ruling until it
issued the order dated August 5, 2020, holding the claim compensable for contusions of the
right shoulder and right hip. This order is the subject of the current litigation.
On February 22, 2021, Bruce A. Guberman, M.D. examined Ms. McKinney and
observed that the compensable conditions in the claim were contusion of the right shoulder,
status post right shoulder arthroscopic subacromial decompression and acromioplasty, and
history of contusion of the right hip. Dr. Guberman opined that the injury also involved Ms.
McKinney’s cervical and lumbar spine, but he noted that no spinal conditions had been ruled
compensable in the claim. Further, the diagnoses proposed by Dr. Guberman were a chronic
posttraumatic strain of the cervical spine, superimposed on preexisting but dormant
degenerative joint and disc disease, and a corresponding condition for the lumbar spine.
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Dr. Guberman asserted that these conditions of the cervical spine and lumbar spine were
directly and causally related to the injury. In particular, Dr. Guberman noted that Ms.
McKinney’s treatment records indicated that she underwent cervical spine surgery, and
conservative care for her lumbar spine following the work accident.
In a report dated August 9, 2021, Prasadarao Mukkamala, M.D. noted that he
evaluated Ms. McKinney on May 26, 2021, concerning this claim. In pertinent part, Dr.
Mukkamala noted that the claim administrator held the claim compensable for contusions
of the right shoulder and right hip. Thus, Dr. Mukkamala determined that impairment
calculations related to Ms. McKinney’s neck and back were inappropriate because those
conditions were not compensable. Further, Dr. Mukkamala mentioned that initial treatment
providers did not document neck or low back injuries, nor was Ms. McKinney symptomatic
in these areas at the time of the injury. Dr. Mukkamala observed that such symptoms were
ubiquitous in older individuals, such as Ms. McKinney.
On February 7, 2022, the OOJ reversed the claim administrator’s August 5, 2020,
order and held that cervical sprain and lumbar sprain were compensable diagnoses in the
claim along with a contusion of the right shoulder and contusion of the right hip. The
rationale of the OOJ in adding these conditions was that it appeared that the claim
administrator had covered the significant cervical surgery, indicating that it had accepted a
cervical injury as compensable. Additionally, the OOJ determined that at the time of the
injury Ms. McKinney had reported a back injury, and Drs. Whitfield and Patel, both
orthopedic surgeons, confirmed the diagnoses. Finally, the OOJ also said it was reasonable
to find that the mechanism of the injury could have caused injuries to the cervical and lumbar
spine. However, the OOJ stopped short of finding that all of Ms. McKinney’s lumbar and
cervical complaints were attributable to her work injury since diagnostic testing
demonstrated preexisting conditions in the spine.
Ms. McKinney appealed the OOJ order dated February 7, 2022, to the Board,
arguing that chronic posttraumatic strain of the cervical spine superimposed on preexisting,
but dormant, degenerative joint and disc disease, and chronic posttraumatic strain of the
lumbosacral spine superimposed on preexisting, but dormant, degenerative joint and disc
disease should have been ruled compensable. By order dated August 8, 2022, the Board
affirmed the OOJ’s ruling regarding the compensable conditions.3 It is from the Board’s
ruling on compensability that Ms. McKinney now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
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The Board’s order modified the OOJ’s ruling concerning a PPD award, finding the
ruling was premature because the cervical and lumbar sprains were not rated. The Board
returned this issue to litigation, and Ms. McKinney does not now contest this ruling.
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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.
On appeal, Ms. McKinney argues that the Board erred in failing to find compensable
the conditions of chronic posttraumatic strain of the cervical spine superimposed on
preexisting, but dormant, degenerative joint and disc disease, and the corresponding lumbar
spine condition. Ms. McKinney asserts that the record establishes that the conditions were more
likely than not a result of the injury as evidenced by the fact she could perform her job duties
until the injury occurred, whereupon she had immediate symptoms, and there was no evidence
of prior cervical or lumbar symptoms. Further, that cervical surgery was approved in the claim
and performed, Ms. McKinney argues, is evidence that the injuries she sustained were more
severe than simple sprains. Ms. McKinney argues that Dr. Guberman more accurately
diagnosed her conditions, and he noted that her preexisting degeneration was “dormant” until
the injury. Dr. Guberman’s diagnosis, she adds, included the chronic nature of her symptoms
that have been ongoing since the injury.
In support of her argument, Ms. McKinney cites Syllabus Point 5, Moore v. ICG
Tygart Valley, LLC, __ W.Va. __, 879 S.E.2d 779 (2022), which states:
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.
After review, we are not persuaded that the Board erred in affirming the OOJ’s
decision that held the claim compensable for lumbar sprain and cervical sprain, but
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declining to add to the claim the chronic posttraumatic strain of the cervical spine
superimposed on preexisting, but dormant, degenerative joint and disc disease, and the
corresponding condition for the lumbar spine.
We note that the diagnoses Ms. McKinney seeks to be added to the claim implicitly
include the preexisting degenerative joint and disc disease conditions. Including these
conditions would be contrary to the Court’s ruling in Moore that held compensable the
discrete new condition of cervical radiculopathy but not the underlying cervical
degenerative disc disease. The Moore Court specifically noted that its “holding in Gill is
still applicable.” Id. at *7. We note that pursuant to Syllabus Point 3, 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.
In the present case, we find no error in the OOJ’s decision that the conditions Ms.
McKinney asserts should be added to the claim are preexisting conditions that were merely
aggravated by the compensable injury and do not qualify as discrete new injuries. On the
other hand, the cervical sprain and lumbar sprain found compensable by the OOJ and
affirmed by the Board satisfy the analysis set out under both Moore and Gill. Finding no
error, we affirm.
Accordingly, we affirm.
Affirmed.
ISSUED: January 10, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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