STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
JENNIFER JOHNS,                                                                  February 3, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0187 (BOR Appeal No. 2050535)
                   (Claim No. 2014008533)

THOMAS HEALTH SYSTEMS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Jennifer Johns, by Patrick K. Maroney, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Thomas Health Systems, Inc., by
Timothy E. Huffman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in
which the Board affirmed a May 19, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 13, 2014,
decision which closed the claim for temporary total disability benefits. 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.

       Ms. Johns, a certified nursing assistant, was injured in the course of her employment on
September 15, 2013, when a patient fell on her neck. The record indicates the claim was held
compensable for cervical sprain/strain. The employees and physician’s report of injury indicates
Ms. Johns suffered a neck sprain after a patient fell on her. Treatment notes from Saint Francis
Hospital emergency room indicate Ms. Johns was diagnosed with a neck sprain. A cervical CT
scan showed degenerative changes.

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        Ms. Johns has a long history of cervical spine problems. August 30, 2011, treatment notes
from Boone Memorial Hospital emergency room indicate she was seen for ongoing neck pain for
eight months that had worsened in the last week. She reported numbness, redness, and burning in
her hands. On September 9, 2011, she sought treatment at Boone Memorial RHC for neck pain
and chronic back pain. She was diagnosed with cervicalgia. September 14, 2011, treatment notes
from MedExpress indicate Ms. Johns was treated for pain in the neck and arm that radiated into
the left shoulder. She reported a lifting injury involving her neck. She was diagnosed with neck
pain. She sought treatment that same day from Boone Memorial Hospital emergency room where
she was assessed with a cervical sprain.

        On September 19, 2011, Ms. Johns was treated at Boone Memorial Hospital Medical
Clinic for a lifting injury involving her neck. She stated that she was lifting a patient and had
sudden pain in her neck. She was diagnosed with cervical strain. She was treated with physical
therapy and medication. On October 5, 2011, she reported that her neck pain had increased.
Moving her neck caused numbness and pain. She was diagnosed with neck pain secondary to
cervical strain with possible nerve impingement or encroachment. On October 17, 2011, an MRI
showed bulging discs at C3-4, C5-6, and C6-7. Finally, on September 10, 2013, five days before
the compensable injury in this claim, Ms. Johns was treated at MedExpress for fever, cough,
congestion, pain, and neck pain. It was noted that she had a bulging disc in her neck for three
years and chronic neck pain. She was diagnosed with neck sprain and respiratory infection.

         Ms. Johns underwent treatment at Charleston Physical Therapy Solutions from
September 25, 2013, through October 24, 2013, for the compensable injury in this claim. The
notes indicate she presented with decreased and painful cervical range of motion. The symptoms
suggested a displacement within the cervical spine referring symptoms to the left shoulder. Ms.
Johns completed six physical therapy visits and reported that she was pain free with full function
at the last visit.

        Ms. Johns regularly sought treatment at MedExpress. A note dated October 13, 2013,
indicates she was seen for pain in her neck and numbness and weakness in her extremities. The
note indicates this was an exacerbation of a chronic issue. On November 12, 2013, she was seen
for pain in her neck and back that radiated to her left leg. She reported an old injury in which she
fractured vertebrae of the cervical spine. She stated that her pain was not severe. She was
assessed with lumbar sprain/strain, neck sprain/strain, radiculopathy of the arm, paresthesia, and
radiculopathy of the leg. On December 4, 2013, Ms. Johns was treated for neck pain. She was
diagnosed with neck sprain and instructed to return to work with no restrictions.

       On January 5, 2014, Ms. Johns sought treatment at Saint Francis Hospital emergency
room for ongoing neck pain. She noted that she turned her head to the right at work that day and
her neck just popped. X-rays of the cervical spine showed mild degenerative changes, more
prominent at C5-6, with posterior osteophyte formation. She was diagnosed with neck sprain. On
January 9, 2014, Ms. Johns was treated at MedExpress where she was diagnosed with
radiculopathy and released to return to work on modified duty on January 10, 2014.


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        An application for temporary total disability benefits was submitted on January 14, 2014,
indicating Ms. Johns was temporarily and totally disabled from January 9, 2014, through March
9, 2014, due to cervical radiculopathy. It was also indicated that she needed a neurosurgical
referral and a cervical MRI. A January 16, 2014, cervical MRI revealed mild degenerative
changes, osteophyte disc complex at C2-3, a small paracentral disc protrusion at C5-6, and a
small annular tear at C6-7.

        Ms. Johns was next treated at Hope Clinic. Notes indicate she still had severe neck pain
on March 17, 2014. The assessment was C5-6 herniated disc with annular tear and spinal
stenosis. She was referred to neurology. On April 10, 2014, a return to work report from
MedExpress indicates Ms. Johns was placed on modified duty as of April 10, 2014. Her
diagnoses were listed as radiculopathy, neck pain, and cervical disc displacement. On April 14,
2014, Ms. Johns stated in a treatment note by Hope Clinic that her medications still were not
working. The assessment was degenerative disc disease, osteoarthritis, whiplash, and neck pain.
An authorization request was submitted by Hope Clinic for a referral to a neurosurgeon for
ongoing medical problems related to the September 15, 2013, work injury. A final request was
made by David Ferrell, M.D., from MedExpress, on April 29, 2014, for a neurosurgical
consultation based on Ms. Johns’s symptoms and MRI.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Ms.
Johns on June 12, 2014. Dr. Mukkamala noted in his evaluation that the compensable condition
was neck sprain. His diagnosis was cervical sprain and he found that Ms. Johns was at maximum
medical improvement. He opined that she required no further treatment for the compensable
injury and assessed 8% whole person impairment.

        A final independent medical evaluation was performed by Paul Bachwitt, M.D., on
December 18, 2014. Dr. Bachwitt noted the compensable condition of cervical sprain/strain,
specifically referring to a September 20, 2013, Order of the claims administrator. Dr. Bachwitt
opined the case was properly closed for temporary total disability benefits. He noted that most of
Ms. Johns’s symptoms were related to old arthritic changes and a motor vehicle accident she was
in at age nineteen. He opined that her simple cervical sprain was superimposed on pre-existing
degenerative changes which should have resolved within two to three months. He further opined
that it was appropriate to deny the request for a pain clinic and neurosurgical referral. He found
that she had no particular areas of tenderness or findings that could be treated by a pain clinic nor
did she have any clinical findings of an operative disc lesion that would need neurosurgical
treatment. He assessed 8% impairment.

       The claims administrator closed the claim for temporary total disability benefits on
August 13, 2014. The Office of Judges affirmed the decision in its May 19, 2015, Order. It found
that Ms. Johns did not establish by a preponderance of the evidence that the claim was
improperly closed for temporary total disability benefits. The Office of Judges found that the
claims administrator stated in its August 13, 2014, decision that the claim was closed as Ms.
Johns had not presented evidence showing that she continued to be totally disabled. However,
per a second claims administrator decision dated August 13, 2014, she was granted an 8%
permanent partial disability award. Thus, the Office of Judges concluded the claim was closed
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for temporary total disability because she had reached maximum medical improvement for the
compensable injury.

       The Office of Judges noted that no Orders or decisions were submitted regarding the
compensable injury in the claim. However, per the reports of Drs. Mukkamala and Bachwitt, the
compensable condition is a cervical sprain. Dr. Bachwitt in particular, specifically referenced a
September 20, 2013, claims administrator decision which held the claim compensable for
cervical sprain/strain. Based upon the evidence, the Office of Judges found that the claim was
appropriately closed for temporary total disability benefits. Ms. Johns had reached maximum
medical improvement as determined by both Drs. Mukkamala and Bachwitt in their independent
medical investigations. Further, their opinions were supported by West Virginia Code of State
Rules § 85-20-35.5 (2006), which states that cervical sprain/strains are expected to resolve
within eight weeks.

        Furthermore, the Office of Judges determined that if Ms. Johns is unable to return to
work or is not at maximum medical improvement, it is because of conditions which are not
compensable. The Office of Judges found that per the April 14, 2014, MedExpress report, that
Ms. Johns’s job restrictions were due to radiculopathy, neck pain, and cervical disc
displacement, none of which are compensable conditions. In the April 29, 2014, MedExpress
report, Dr. Ferrell requested a neurosurgery consultation based on her symptoms and MRI. The
only post-injury MRI was performed on January 16, 2014, and revealed mild degenerative
changes, osteophyte disc complex at C2-3, a small disc protrusion at C5-6, and a small annulus
tear at C6-7. The Office of Judges lastly determined that Ms. Johns requested a reopening of her
claim based upon the diagnosis of cervical radiculopathy. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
February 3, 2016.

       After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Ms. Johns has requested temporary total disability benefits for conditions that
have not been held compensable in this claim. She had serious pre-existing degenerative changes
and cervical spine conditions that are not related to the compensable injury. She sustained a
simple cervical sprain/strain as a result of her compensable injury, which should have resolved
long ago.

        For the foregoing reasons, we find 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. Therefore, the decision of the Board of Review is affirmed.



                                                                                        Affirmed.



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ISSUED: February 3, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker

DISSENTING:
Justice Menis E. Ketchum




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