Gill v. City of Charleston

Citation783 S.E.2d 857
Decision Date10 February 2016
Docket NumberNo. 14–0983.,14–0983.
Parties William L. GILL, Claimant Below, Petitioner, v. CITY OF CHARLESTON, Respondent Below, Respondent.
CourtSupreme Court of West Virginia

Patrick K. Maroney, Maroney, Williams, Weaver & Pancake, PLLC, Charleston, WV, for Petitioner.

William B. Gerwig, III, Charleston, WV, Pro Se Amicus Curiae.

James W. Heslep, Steptoe & Johnson PLLC, Charleston, WV, for Respondent.

Lisa Warner Hunter, Michelle Rae Johnson, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Amicus Curiae, The Defense Trial Counsel of West Virginia.

DAVIS

, Justice:

This appeal was filed by William L. Gill ("Mr. Gill") from an adverse final order of the Workers' Compensation Board of Review ("the Board"). The Board's order reversed a decision by the Workers' Compensation Office of Judges ("the OOJ"), which had added four new diagnoses to Mr. Gill's initial compensable claim for a lumbar and thoracic sprain

injury. The Board found that the additional four diagnoses were noncompensable preexisting conditions. In this appeal, Mr. Gill seeks to have the OOJ's decision reinstated.1 After a careful review of the briefs, the record submitted on appeal, and listening to the argument of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

The facts of this case involve injuries to Mr. Gill's back. Mr. Gill's first back injury appears to have occurred in 1985, when he was 18 years old. This noncompensable injury occurred "when he lifted the door handle up on his car and felt back pain[.]"2 In 1992, Mr. Gill fell approximately 80 feet while rock climbing. Some of the noncompensable injuries sustained in the fall included: fractured pelvis

, fractured sacrum, fractured pedicle, fracture of the left tibia and fibula, and injury to internal organs. Mr. Gill's injuries appear to have been treated at a hospital in Pittsburgh, Pennsylvania. In spite of the severe back injuries he sustained in 1992, Mr. Gill passed the firefighters' physical tests in 2002 and was hired by the City's fire department.3

Mr. Gill received treatment at Short Chiropractic, Inc. ("chiropractic clinic"), for back problems associated with the 1992 fall. Treatment notes from the chiropractic clinic in April of 2004 indicated that Mr. Gill was being treated for lumbar radiculopathy

(diagnosis code 724.3), lumbar disc degenerative disc disease (diagnosis code 722.52), lumbar disc displacement (diagnosis code 722.10), and lumbar facet syndrome (diagnosis code 724.8). Mr. Gill was treated by the chiropractic clinic for thoracic and lumbar complaints during the years 2005, 2006, 2008, 2009, 2011, and 2012. In treatment notes, dated February 7, 2012, the chiropractic clinic indicated Mr. Gill was being treated for thoracalgia (diagnosis code 724.1), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and muscle spasm (diagnosis code 728.85).

On February 8, 2012, Mr. Gill injured his back while lifting a practice dummy during firefighter training. This injury was ruled compensable and diagnosed as lumbar (diagnosis code 847.2) and thoracic (diagnosis code 847.1) sprain. In March of 2012, Dr. David Weinsweig examined Mr. Gill and reported that "he suffers from pain temporally related to the injury at work with degenerative disc disease

and an element of radiculopathy." In June of 2012, Dr. Bill Hennessey performed an independent medical evaluation of Mr. Gill. Dr. Hennessey reported that Mr. Gill had reached maximum medical improvement and had made a full recovery from the compensable injury without any impairment. As a result of Dr. Hennessey's evaluation, in July of 2012 Mr. Gill was denied a permanent partial disability award for the compensable injury.

In August of 2012, the chiropractic clinic requested authorization for injections to treat Mr. Gill for neuritis

/radiculitis (diagnosis code 724.4), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and facet syndrome (diagnosis code 724.8). The Claim Administrator denied the request based upon Dr. Hennessey's report.4 Mr. Gill protested the denial of the injections to the OOJ.

While the case was pending before the OOJ, an independent medical evaluation was performed on Mr. Gill by Dr. P.B. Mukkamala. A medical opinion rendered by Dr. Mukkamala in January of 2013 concluded that Mr. Gill's compensable injury had reached maximum medical improvement and did not aggravate his preexisting injuries.

The OOJ treated the request for authorization for injections for four diagnoses as a request to add the four diagnoses as compensable components of the claim. The OOJ eventually issued an order finding that the four diagnoses, neuritis

/radiculitis (diagnosis code 724.4), sciatica (diagnosis code 724.3), degeneration of lumbosacral IVD (diagnosis code 722.52), and facet syndrome (diagnosis code 724.8), were compensable. The OOJ reasoned as follows:

The record designation demonstrates that the claimant's injury of February 8, 2012, catalyzed or precipitated a disabling aggravation of his preexisting lumbar spine condition. Such aggravation of a preexisting condition by a compensable injury ... necessarily sanctions the inclusion of the aggravated, preexisting condition as a compensable element of the injury[.]

The City appealed the OOJ decision to the Board. By order entered August 29, 2014, the Board reversed the decision of the OOJ and concluded "that the additional diagnoses are not compensable components of the claim." Mr. Gill filed this appeal.5

II.STANDARD OF REVIEW

The standard of review applicable to this Court's consideration of workers' compensation appeals has been set out under W. Va.Code § 23–5–15 (2005)

(Repl. Vol. 2010), in relevant part, as follows:

(b) In reviewing a decision of the board of review, the supreme court of appeals shall consider the record provided by the board and give deference to the board's findings, reasoning and conclusions[.]
....
(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weighing of the evidentiary record....

See Hammons v. West Virginia Office of Ins. Comm'r, 235 W.Va. 577, 582–83, 775 S.E.2d 458, 463–64 (2015)

. As we previously recognized in Justice v. West Virginia Office Insurance Commission, 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the context of decisions issued by the Board. See also Davies v. West Virginia Office of Insurance Comm'r, 227 W.Va. 330, 334, 708 S.E.2d 524, 528 (2011)

. With these standards in mind, we proceed to determine whether the Board committed error in reversing the decision of the OOJ.

III.DISCUSSION

In this proceeding, Mr. Gill asks this Court to reinstate the OOJ decision that added four preexisting noncompensable conditions to his claim. Before we address the merits of Mr. Gill's appeal, we first must place this case in its proper context.

To begin, the record is clear in showing that no physician requested the diagnostic codes 724.4 (neuritis

/radiculitis ), 724.3 (sciatica), 722.52 (degeneration of lumbosacral IVD), and 724.8 (facet syndrome) be added as compensable elements of Mr. Gill's February 8, 2012, injury. The chiropractic clinic requested authorization from the Claim Administrator to provide Mr. Gill with injections to treat only the four diagnostic codes. After the request was denied by the Claim Administrator, Mr. Gill protested the denial of authorization for the injections. Subsequent to the protest being filed with the OOJ, the OOJ sua sponte treated the protest as a request to add the four diagnostic codes to the compensable claim. It does not appear that an objection was made by the City, at the administrative level, to the OOJ's conversion of the protest. In the appeal to this Court, the City has pointed out that no formal request was ever made to add the four diagnostic codes to the claim.6 Insofar as no objection was made at the administrative level, we find the issue waived for purposes of this appeal. See Hoover v. West Virginia Bd. of Med., 216 W.Va. 23, 26, 602 S.E.2d 466, 469 (2004) ("[I]f a party fails to properly raise a nonjurisdictional ‘defense during [an] administrative proceeding, that party waives the defense and may not raise it on appeal.’ " (quoting Fruehauf Trailer Corp. v. Workers' Comp. Appeal Bd., 784 A.2d 874, 877 (Pa.Cmwlth.2001) )). Even though the issue has been waived, it helps to explain, as will be shown, why there is a lack of medical evidence to support the OOJ decision.

This Court has set out the framework for finding a workers' compensation claim compensable as follows: "In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment." Syl. pt. 1, Barnett v. State Workmen's Comp. Comm'r, 153 W.Va. 796, 172 S.E.2d 698 (1970)

. See also W. Va.Code § 23–4–1(a) (2008) (Repl. Vol. 2010) ("[W]orkers' compensation benefits shall be paid the Workers' Compensation Fund, to the employees of employers subject to this chapter who have received personal injuries in the course of and resulting from their covered employment [.]" (emphasis added)). All three of these elements must be satisfied for an injury to be held compensable.

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