Blackhawk Mining, LLC v. Ullman

• Docket Number: 24-ICA-474
• Decision Date: 06 June 2025
• Citation: Blackhawk Mining, LLC v. Ullman, 24-ICA-474 (W. Va. ICA Jun 06, 2025)
• Parties: BLACKHAWK MINING, LLC, Employer Below, Petitioner v. RICHARD ULLMAN, Claimant Below, Respondent
• Court: West Virginia Intermediate Court of Appeals

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BLACKHAWK MINING, LLC, Employer Below, Petitioner v. RICHARD ULLMAN, Claimant Below, Respondent

No. 24-ICA-474

West Virginia Intermediate Court of Appeals

June 6, 2025

(JCN 2019019394)

MEMORANDUM DECISION

PetitionerBlackhawk Mining, LLC("Blackhawk") appeals the October 31, 2024, order of the Workers' Compensation Board of Review("Board").RespondentRichard Ullman filed a response.^[1] Blackhawk filed a reply.The issue on appeal is whether the Board erred by reversing the claim administrator's order and holding that Mr. Ullman met his burden of proof to show that a L5-S1 transforaminal lumbar fusion ("TLIF") procedure was medically necessary and reasonably required for treatment of the compensable injury.

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.

This claim arose on November 9, 2017, when Mr. Ullman sustained an injury to his lower back when he was struck by a cable while working for Blackhawk.He filed his workers' compensation claim on November 13, 2017, which was held compensable for lumbar sprain/strain by order dated November 30, 2017.Mr Ullman had a second work-related injury to his lower back on December 5, 2018.

On May 7, 2019, Mr. Ullman was examined by Dr. Syam Stoll, M.D.Dr Stoll opined that Mr. Ullman's November 9, 2017, lumbar strain/sprain had completely resolved prior to the injury of December 5, 2018.By decision dated December 18, 2019, the Office of Judges added lumbosacral radiculopathy as a compensable diagnosis of the November 9, 2017, injury, and authorized a consultation with an orthopedic surgeon.

On August 25, 2020, Mr. Ullman underwent a right-side microscopic lumbar discectomy at L5-S1 performed by Orthopaedic Spine Surgeon, Dr. Rajesh Patel, M.D.The post-operative diagnoses were lumbar disc herniation at L5-S1 on the right, right radiculopathy and lumbar sprain.Such procedure was authorized pursuant to the November 9, 2017, injury claim.^[2]

Following the August 25, 2020, procedure, Mr. Ullman continued treatment with Dr. Patel.By August 28, 2023, Dr. Patel noted Mr. Ullman's severe lower back pain was progressively worsening.He reported declining relief following the series of medial branch block injections.The assessment was lumbar post laminectomy syndrome at L5-S1, bilateral neural foraminal narrowing at L5-S1, lumbar degenerative disc disease at L5-S1, lumbar facet sprain, lumbago, cervical spondylosis, and cervical sprain.Dr. Patel believed that it was time to consider lumbar fusion surgery because Mr. Ullman was no longer responding to conservative treatment.

On January 14, 2021, Mr. Ullman had an independent medical evaluation performed by Dr. Stoll to determine the level of impairment in his lumbar region.Dr. Stoll assessed a 10% whole body impairment related to the November 9, 2017, injury.Dr. Stoll also opined that Mr. Ullman had reached maximum medical improvement since his injury and did not need any additional medical treatment for the November 9, 2017, injury.

In his notes from September 27, 2023, Dr. Patel reported that Mr. Ullman's recent MRI showed bilateral neural foraminal narrowing at L5-S1 with postoperative changes, severe disc degeneration, and modic and plate changes.Dr. Patel noted that the MRI revealed significant collapse where Mr. Ullman previously had decompression surgery at L5-S1, and had reached the point where Mr. Ullman could no longer continue working.Dr. Patel explained that it was medically reasonable to proceed with the L5-S1 posterior lumbar interbody fusion with decompression and revision at L5-S1 on the right side with instrumentation and prosthetic device placement to stabilize the L5-S1 region and improve Mr. Ullman's symptoms.

Mr. Ullman was seen by Dr. Stoll for another independent medical evaluation on December 13, 2023.Dr. Stoll indicated that the ongoing subjective complaints by Mr. Ullman are due to the natural progression of aging of pre-existing lumbar spondylosis.Dr. Stoll opined that the ongoing subjective complaints are not supported by the objective medical documentation since Mr. Ullman underwent appropriate treatment for the injury and was placed at maximum medical improvement on January 14, 2021.Dr. Stoll further stated that in Dr. Patel's follow-up office note of September 27, 2023, there is no mention of Mr. Ullman's back going out at work, but a reference to Mr. Ullman's complaints of ongoing low back pain with no mention of a work injury.Dr. Stoll opined that the current proposed L5-S1 lumbar fusion is not supported by evidence-based medicine treatment guidelines and the current subjective complaint of axial low back pain does not warrant an L5-S1 lumbar fusion.He further stated that there are no objective findings to substantiate active lumbar radiculopathy, or spinal instability that would warrant the proposed procedure.Additionally, Dr. Stoll noted that the patient pain diagram that Mr. Ullman completed prior to his evaluation did not support any lumbar radiculopathy.On March 6, 2024, the claim administrator issued its order denying authorization for the TLIF based upon Dr. Stoll's medical report of December 13, 2023.

On April 8, 2024, Mr. Ullman testified, by deposition, that he had undergone a lumbar discectomy on August 25, 2020, and had returned to work a few months after.His symptoms did not fully resolve, and he continued treating with his orthopedic surgeon, Dr. Patel.Mr. Ullman stated that he continued to get injections, but in July of 2023, the injections became ineffective, and Dr. Patel told him the recent MRI revealed his vertebras to be bone on bone.Mr. Ullman testified that on September 16, 2023, his back went out at work, and he fell when he was simply walking.He submitted an incident report but did not file a new workers' compensation claim because he and Dr. Patel believed it to be a continuation of the original injury.Mr. Ullman testified that he had not been able to return to work since, and that Dr. Patel said he could not return until after surgery.According to Mr. Ullman, his lower back continues to go out on him suddenly and unpredictably, and that his wife has to help him walk around their house.

Dr Patel submitted a letter dated June 19, 2024.In that letter, Dr. Patel explained that the pathology was directly related to the...