1 

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

KANAWHA HOSPICE CARE, INC.,

Employer Below, Petitioner

vs.) No. 23-ICA-187 (JCN: 2021020921) 

JEANNIE D. BOSTIC, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Kanawha Hospice Care, Inc. (“KHC”) appeals the April 10, 2023, order 

of the Workers’ Compensation Board of Review (“Board”). Respondent Jeannie D. Bostic 

filed a response.1 KHC did not file a reply. The issue on appeal is whether the Board erred 

in reversing the claim administrator’s order; adding C6 bulge, C6 radiculitis, and right 

shoulder rotator cuff syndrome as compensable conditions in the claim; and modifying the 

order to reflect that cervical facet sprain was included under the compensable diagnosis of 

neck strain. 

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. 

On April 11, 2021, Ms. Bostic, a CNA for KHC, was lifting a patient onto a gurney 

when she felt pain in her neck and shoulder. Ms. Bostic presented to the emergency room 

(“ER”) the next day and complained of a neck injury sustained at work, though the records 

indicate that she also complained of pain in the right trapezius muscle. A CT scan revealed 

disc space narrowing with osteophytic lipping most pronounced at C6-C7 and C5-C6, and 

osteophytic encroachment into the spinal canal on the left at C5-C6. ER staff diagnosed 

her with a cervical sprain and helped Ms. Bostic complete an Employees’ and Physicians’ 

Report of Occupational Injury form, which indicated the same diagnosis. 

Ms. Bostic followed up with Raina M. Holland, PASUP, on April 15, 2021, and 

reported blurred vision; decreased range of motion and weakness in her right upper 

1 KHC is represented by Charity K. Lawrence, Esq. Ms. Bostic is represented by 

Reginald D. Henry, Esq., and Lori J. Withrow, Esq.

FILED

November 1, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

extremity; and pain, pressure, and weakness in her neck. Ms. Holland diagnosed cervical 

radiculopathy and an “[a]ccident while engaged in work-related activity.” On April 29, 

2021, Ms. Bostic returned to see Ms. Holland and reported that she had increased pain in 

her right shoulder, a feeling of tightness at the base of her neck, difficulty sleeping due to 

pain, and a dull headache. Ms. Holland made a referral for an MRI and a neurosurgery 

consultation.

By order entered on May 14, 2021, the claim administrator held the claim 

compensable for strain of muscle, fascia, and tendon at neck level. Ms. Bostic was treated 

by George B. Bryant, PASUP, on May 14, 2021. Ms. Bostic continued to complain of pain 

in her neck and right upper extremity, limited range of motion in the right upper extremity, 

and headaches, and noted that she was now experiencing dizziness. Mr. Bryant diagnosed 

cervical radiculopathy.

On June 4, 2021, Ms. Bostic underwent an MRI of the cervical spine that revealed 

mild to moderate left posterolateral osteophyte formation with disc bulging at the C5-C6 

level and a small left lateral disc herniation causing mild to moderate flattening of the left 

anterior aspect of the cord and mild compression of the left C6 nerve root. The impression 

was cervical spondylosis with spinal cord flattening, foraminal narrowing, and nerve root 

compression related to the disc herniation.

Ms. Bostic returned to Mr. Bryant on June 21, 2021. Mr. Bryant diagnosed cervical 

radiculopathy, “[a]ccident while engaged in work-related activity,” cervical nerve root 

compression, and cervical spondylosis. Subsequently, on June 30, 2021, Ms. Bostic was 

seen by Rajesh V. Patel, M.D., who noted degenerative changes in the cervical spine per 

the x-ray. Dr. Patel further noted the MRI revealed disc protrusion at C5-C6 with a small 

herniation at C5-C6 on the left side with mild to moderate flattening of the left anterior 

aspect of the cord, left C6 compression, and C6-C7 protrusion with mild flattening of the 

cord. Dr. Patel diagnosed cervical disc herniation C5-C6 left side, left C6 radiculitis, 

cervical facet sprain, and cervical disc protrusion at C5-C6 and C6-C7, and he 

recommended conservative treatment. 

On July 15, 2021, Dr. Patel performed bilateral cervical medial branch nerve blocks 

at C4-C5, C5-C6, and C6-C7. The postoperative diagnoses were cervical sprain, cervical 

facet sprain, cervicalgia, and cervical disc bulging. Ms. Bostic saw Dr. Patel for a follow 

up on April 16, 2021, and reported that the medial branch nerve blocks helped, but that the 

pain, including that in her left shoulder, was beginning to return. Dr. Patel diagnosed 

cervical disc bulging at C5-C6, left side; cervical sprain; left C6 radiculitis; cervical facet 

sprain; cervical disc protrusions at C5-C6 and C6-C7; and right rotator cuff syndrome.

Ms. Bostic was examined by B.K. Vaught, M.D., a neurologist, on August 26, 2021. 

Dr. Vaught performed an EMG study, which revealed active left C5-C6 radiculopathy and 

mild bilateral carpal tunnel syndrome. On September 2, 2021, Dr. Patel again performed
3

cervical medial branch nerve blocks at C4-C5, C5-C6, and C6-C7. On October 5, 2021, 

Ms. Bostic underwent an independent medical evaluation (“IME”) performed by David L. 

Soulsby, M.D. Dr. Soulsby diagnosed cervical sprain/strain and degenerative disc disease 

of the cervical spine, which he opined was a preexisting condition. Dr. Soulsby opined that 

Ms. Bostic had reached maximum medical improvement and that she needed no additional 

treatment for her compensable injury. 

Ms. Bostic followed up with Dr. Patel on November 3, 2021, and reported minimal 

discomfort depending on the activity. Dr. Patel’s assessment remained largely the same, 

and he requested that C5-C6 disc bulge, C6 radiculitis, cervical facet sprain, and right 

shoulder rotator cuff syndrome be added as compensable conditions in the claim.

On February 10, 2022, Rebecca Thaxton, M.D., performed a physician review 

wherein she addressed whether the conditions requested by Dr. Patel should be added to 

the claim. Dr. Thaxton opined that the medical evidence did not support cervical 

radiculopathy, as exams conducted in October and November of 2021 were negative for 

radiculopathy. Dr. Thaxton further opined that the evidence did not support adding rotator 

cuff syndrome to the claim as it was not temporally related, stating “[a]cute injuries cause 

acute conditions” and that the medical evidence showed bilateral shoulder range of motion 

was symmetric. Regarding the cervical disc bulges and cervical facet changes, Dr. Thaxton 

noted that these conditions were degenerative processes that preexisted the injury in the 

claim. She stated that a temporary flareup of the degenerative condition would not mean 

that the degenerative condition itself was attributable to the compensable injury. Lastly, 

Dr. Thaxton noted that cervical facet sprain need not be added to the claim as treatment 

guidelines for the compensable cervical sprain had been exceeded. 

By order dated February 15, 2022, the claim administrator denied Dr. Patel’s request 

to add C5-C6 disc bulge, C6 radiculitis, cervical facet sprain, and right shoulder rotator 

cuff syndrome to the claim. The Encova Select Grievance Board determined that the claim 

administrator’s order was appropriate, and the claim administrator issued an order 

affirming its prior decision on March 23, 2022. Ms. Bostic protested.

On June 13, 2022, Dr. Patel authored correspondence wherein he opined that the 

requested conditions were attributable to the compensable injury. Dr. Patel noted that Ms. 

Bostic had clinical signs consistent with C6 radiculitis as well as symptoms consistent with 

cervical facet sprain. Dr. Patel noted that the MRI of Ms. Bostic’s cervical spine revealed 

a disc protrusion with a small herniation of C5-C6 with impingement of the left C6 nerve 

root, which is consistent with left C6 radiculitis. Further, Dr. Patel noted that Ms. Bostic 

initially reported right shoulder pain and that her shoulder pain became more apparent as 

the pain in her cervical spine subsided. Dr. Patel concluded, “[t]aking into consideration 

Ms. Bostic’s symptoms, I believe Ms. Bostic did have a discrete injury” and once again 

recommended adding the requested conditions as compensable in the claim.
4

According to the Board’s order, KHC also submitted medical records predating the 

compensable injury. However, KHC failed to include those medical records in the 

appendix record on appeal. 

By order dated April 10, 2023, the Board reversed the claim administrator’s March 

23, 2022, order which denied Dr. Patel’s request to add conditions to the claim, and added 

C6 bulge, C6 radiculitis, and right shoulder rotator cuff syndrome as compensable 

conditions in the claim. The Board modified the claim administrator’s order regarding the 

denial of the request to add cervical facet sprain to reflect that it would not be added as a 

distinct compensable diagnosis as it was included under the compensable diagnosis of neck 

strain.

Citing to Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and 

Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022), the Board 

found that the medical evidence indicated that Ms. Bostic experienced discrete new injuries 

that should be held compensable. While KHC submitted medical records predating the 

injury, the Board found that no diagnoses or assessments beyond pain and osteoarthritis 

had been made, and no imaging studies predating the injury were submitted. 

The Board found that the C6 bulge and the C6 radiculitis diagnoses were discrete 

new injuries, noting that Dr. Patel attributed the disc bulge and radiculitis to the 

compensable injury. The Board also noted the MRI (which revealed a disc herniation 

compressing the C6 nerve root) and the EMG study (which confirmed active C6 

radiculopathy) and found that this evidence failed to establish that either the disc bulge or 

radiculitis preexisted the claim. Although Dr. Soulsby assessed Ms. Bostic with only a 

cervical sprain/strain and degenerative disc disorder, the Board found that he rendered no 

opinion on whether the conditions requested by Dr. Patel should be added to the claim. 

Further, though Dr. Thaxton found that some physical examinations failed to support a 

finding of radiculopathy, the Board found that the EMG study clearly revealed active left 

C5-C6 radiculopathy. The Board also found that although Dr. Thaxton opined that the C5-

C6 disc bulge predated the compensable injury, no medical record or imaging study was 

submitted into the record demonstrating such. Accordingly, the Board added C6 bulge and 

the C6 radiculitis as compensable conditions in the claim. 

Regarding right shoulder rotator cuff syndrome, the Board likewise found this 

diagnosis to be a discrete new injury. The Board found that, contrary to Dr. Thaxton’s 

opinion that the diagnosis was not suggested early in the claim, the medical record 

indicated that Ms. Bostic had complaints of right shoulder pain at the time the claim was 

filed, and that Dr. Patel explained her reports of increased pain could be attributed to her 

neck pain subsiding due to the medial branch blocks, allowing her shoulder pain to become 

more apparent. The Board found Dr. Patel’s opinion sufficiently explained any delay in 

reports of shoulder pain and, ultimately, found that right shoulder rotator cuff syndrome 

should be added to the claim.
5

Lastly, the Board found that cervical facet sprain would not be added as a separate 

diagnosis in the claim given that neck strain was compensable. KHC now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in 

part, as follows:

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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App. 

2022).

On appeal, KHC argues that the Board erred in reversing the claim administrator’s 

order and adding C6 bulge, C6 radiculitis, and right shoulder rotator cuff syndrome as 

compensable conditions in the claim. According to KHC, the Board erroneously concluded 

that Ms. Bostic’s disc herniation and radiculitis did not predate the injury. KHC argues that 

the MRI revealed degenerative conditions not attributable to the work-related injury, and 

Dr. Soulsby diagnosed multilevel degenerative disc disease.2

KHC also argues that Ms. Bostic’s shoulder symptoms did not immediately appear 

following the work-related injury. KHC notes that the shoulder was not included on the 

Employees’ and Physicians’ Report of Occupational Injury and the ER records indicate 

that Ms. Bostic suffered a neck injury with pain that did not radiate. KHC argues that when 

Ms. Bostic finally raised complaints of her right shoulder pain, no mention of a rotator cuff 

injury was made. It was not until almost seven months following the injury that Dr. Patel 

diagnosed rotator cuff syndrome, despite the prior physical exams of the shoulder being 

normal.

2 KHC also references medical records predating the work-related injury which it 

claims demonstrates that Ms. Bostic was previously symptomatic in her neck and right 

shoulder. However, KHC failed to include these records in the appendix record on appeal.
6

KHC argues that, in sum, Ms. Bostic was symptomatic in her neck and shoulder 

prior to the injury and that any symptoms related to her rotator cuff did not immediately 

appear and continuously manifest following the injury. KHC thus concludes and argues 

here that Ms. Bostic has failed to demonstrate that she is entitled to the rebuttable 

presumption set forth in Moore, that the Board should have found that her current 

symptoms are the result of a preexisting condition, and that her diagnoses are not 

compensable in the claim. We disagree.

In order for a claim to be held compensable under the Workers’ Compensation Act, 

three elements must coexist: (1) A personal injury, (2) received in the course of 

employment, and (3) resulting from that employment. Jordan v. State Workmen’s Comp. 

Comm’r, 156 W.Va. 159, 163, 191 S.E.2d 497, 500 (1972) (citation omitted). The Supreme 

Court of Appeals of West Virginia (“SCAWV”) has set forth a general rule that: 

[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.

Gill, 236 W. Va. at 738, 783 S.E.2d at 858, syl. pt. 3 (emphasis added). The SCAWV 

expounded on Gill in Moore, holding that:

[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.

247 W. Va. at 294, 879 S.E.2d at 781, syl. pt. 5. 

Most recently, this Court explained that:

[a] preexisting condition itself does not become compensable, only the 

discrete new injury. Moore reaffirmed and expanded on the holding in Gill

and therefore the holdings in both cases must be considered together. When 

read in unison, Gill and Moore do not render preexisting injuries 
7

compensable. Compensability is limited only to discrete new injuries and 

disabilities that manifest following the compensable injury.

Blackhawk Mining, LLC v. Argabright, __ W. Va. __, __ S.E.2d __, 2023 WL 3167476 

(Ct. App. 2023).

Here, the Board found that the C6 bulge, C6 radiculitis, and right shoulder rotator 

cuff syndrome did not preexist the claim and, rather, were discrete new injuries. While 

KHC argues that evidence such as the MRI and Dr. Soulsby’s report establish that these 

diagnoses preexisted the claim, the Board disagreed. The Board noted that the medical 

records dated before the compensable injury contained no diagnosis apart from pain and 

no imaging studies performed prior to the compensable injury were submitted. The MRI 

performed after the injury revealed a disc herniation compressing the C6 nerve root on the 

left, and the EMG study confirmed active radiculopathy. While Dr. Soulsby diagnosed 

degenerative conditions, the Board found that he rendered no opinion as to whether C6 

bulge, C6 radiculitis, and right shoulder rotator cuff syndrome should be added as 

compensable conditions in the claim. The Board was likewise not persuaded by Dr. 

Thaxton, who opined that there was no evidence of radiculopathy. However, the EMG 

study rebutted her opinion. Conversely, Dr. Patel, Ms. Bostic’s treating physician, opined 

that the requested conditions were discrete, new injuries that were attributable to the 

compensable injury. The Board concluded that there was no assessment, diagnosis, or 

imaging study revealing that these conditions preexisted the claim. Upon review, we cannot 

conclude that the Board was clearly wrong in determining that the evidence demonstrates 

that the C6 bulge, C6 radiculitis, and the right shoulder rotator cuff syndrome were 

sustained in the course of and resulting from Ms. Bostic’s employment.

While KHC argues that Ms. Bostic’s rotator cuff condition was not reported 

immediately after the injury and was not diagnosed until nearly seven months after the 

injury, thereby diminishing the likelihood that the condition was related to the compensable 

injury, these assertions are not supported by the record. While no shoulder diagnosis was 

initially given, the ER records indicate that Ms. Bostic reported pain in the trapezius muscle 

of her shoulder. Ms. Bostic also reported right upper extremity pain to Ms. Holland during 

their initial encounters. Further, Dr. Patel provided an explanation for any delay in 

symptoms related to Ms. Bostic’s rotator cuff syndrome, which the Board found to be 

reasonable. Specifically, Dr. Patel explained that as Ms. Bostic’s neck symptoms subsided, 

her right shoulder pain became more apparent. 

Based on the foregoing, we find that the Board’s findings regarding compensability 

of the C6 bulge, C6 radiculitis, and right shoulder rotator cuff syndrome are sufficiently 

supported by the evidence. There simply is no conclusive evidence that these diagnoses 

preexisted the claim, and Dr. Patel opined that they resulted from the compensable injury. 

Coupling this evidence with KHC’s failure to provide any medical records preexisting the 
8

compensable injury in the appendix record, we conclude that it has failed to demonstrate 

that the Board’s order was clearly wrong.

Accordingly, based on the foregoing, we affirm the Board’s April 10, 2023, order. 

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen