Miller v. Rogers Petroleum, Inc., 091319 WVSC, 18-0802
| Party Name | DAVID W. MILLER, Claimant Below, Petitioner v. ROGERS PETROLEUM, INC., Employer Below, Respondent |
| Judge Panel | CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice Margaret L. Workman Justice Tim Armstead Justice Evan H. Jenkins Justice John A. Hutchison |
| Case Date | September 13, 2019 |
| Court | Supreme Court of Appeals of West Virginia |
(BOR Appeal No. 2052730) (Claim No. 2014026222)
MEMORANDUM DECISION
Petitioner David W. Miller, by Reginald D. Henry, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Rogers Petroleum, Inc., by Timothy E. Huffman, its attorney, filed a timely response.
The issue on appeal is additional compensable conditions. The claims administrator denied the addition of lumbar intervertebral disc displacement to the claim on September 28, 2016. On February 24, 2017, it denied the addition of right lumbar radiculopathy to the claim. The Office of Judges affirmed the decisions in its March 9, 2018, Order. The Order was affirmed by the Board of Review on August 17, 2018.
The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
Mr. Miller, a heavy equipment fueler, was injured in the course of his employment on August 23, 2013. Treatment notes from Raleigh General Emergency Hospital that day indicate Mr. Miller reported an injury to his lower back while pulling on a hose. He stated that he had pain in his lower back and down his right leg. He was diagnosed with degenerative disc disease.
Mr. Miller sought treatment from Michael Kominsky, D.C., on August 25, 2013. He reported that he started having severe low back pain after tugging on hoses at work. Mr. Miller mentioned a December 4, 2012, injury in which he fell off of a grader and injured his lower back. The injury had significantly worsened since that time. Dr. Kominsky noted that Mr. Miller was examined after the 2012 injury but received no treatment. Dr. Kominsky diagnosed lumbar contusion, lumbar sprain/strain, lumbar facet syndrome, L5-S1 sciatic pain, and sacroiliac sprain/strain. Dr. Kominsky found that Mr. Miller was temporarily and totally disabled and that he had sustained an aggravation of his 2012 injury. A lumbar MRI was performed on September 15, 2013, and showed no significant findings.
The Employees' and Physicians' Report of Injury was completed on February 20, 2014, and indicated Mr. Miller was injured while tugging on a hose. He was treated at Raleigh General Hospital that day and was diagnosed with degenerative disc disease. The claim was held compensable for lumbar and sacrum sprain/strain on June 10, 2014.
On February 24, 2014, Mr. Miller was treated by Teresa Ricottilli, PAC. The treatment note indicates Mr. Miller reported lower back pain after a fall in December of 2012. He was diagnosed with chronic lower back pain. On August 11, 2014, Ms. Ricottilli again indicated that Mr. Miller was seen for chronic lower back pain since a December of 2012 fall. He also reported pain into his right leg and that his right leg had repeatedly given way.
Brian Yee, D.O., saw Mr. Miller on August 4, 2015, for lower back and right leg pain. He diagnosed lumbar sprain and lumbar radiculopathy. Dr. Yee noted that the MRI showed no findings to explain his symptoms and recommended an EMG. The EMG was performed on October 13, 2015, and showed evidence of bilateral tarsal tunnel syndrome as well as chronic right L5-S1 radiculopathy. Mr. Miller returned to Dr. Kominsky on October 28, 2015, for lower back pain, right leg pain, and weakness in his right leg. Dr. Kominsky requested a repeat MRI to check for disc bulges.
On November 5, 2015, Mr. Miller was treated by Sara Mooney, M.D., for constant stabbing pain in his lower back and right leg. Dr. Mooney diagnosed lumbar sprain and lumbar radiculopathy at L5. On February 25, 2016, Mr. Miller was seen for follow up after epidural steroid injections. He reported that the injections did not affect his symptoms. He still had constant pain in his lower back that radiated to the right. The diagnoses remained lumbar sprain and lumbar radiculopathy.
Rebecca Thaxton, M.D., performed a record review on April 19, 2016, in which she recommended that physical therapy be denied. She noted that the accepted diagnoses in the claim are lumbar contusion and lumbar sprain/strain. She found that Dr. Kominsky listed diagnoses of lumbar contusion, lumbar sprain/strain, lumbar facet syndrome, L5-S1 sciatic pain, and sacroiliac sprain/strain. An MRI was negative for any significant...
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