IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MARILYN McKINNEY, 

Claimant Below, Petitioner

vs.) No. 22-ICA-78 (BOR Appeal No.: 2057922)

(JCN: 2017014532)

LITTLE GENERAL STORE, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Marilyn McKinney appeals the order of the Workers’ Compensation 

Board of Review (“Board”) dated August 8, 2022, which, in pertinent part, affirmed the 

Office of Judge’s (“OOJ”) decision dated February 7, 2022, adding cervical and lumbar 

sprain as compensable conditions in the claim, but denying the addition of chronic 

posttraumatic strain of the cervical spine superimposed on preexisting, but dormant, 

degenerative joint and disc disease, and chronic posttraumatic strain of the lumbosacral 

spine superimposed on preexisting, but dormant, degenerative joint and disc disease.1

Respondent Little General Store, Inc., filed a timely response.2 Ms. McKinney did not file 

a reply brief.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 5111-

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 lower tribunal’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure.

Ms. McKinney was injured when she slipped and fell while working at Little General 

Store, Inc. on December 9, 2016, suffering injuries to her right hip, right shoulder, right arm, 

and back. S. Brett Whitfield, M.D., an orthopedic surgeon, examined Ms.

1 The Board modified the OOJ’s ruling that affirmed a 2% permanent partial 

disability award (“PPD”), and returned the issue to litigation, concluding that the OOJ’s 

ruling was premature as additional evidence is needed since the newly added conditions 

were not evaluated. Ms. McKinney does not assign error to this ruling.

2 Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by 

Charles R. Bailey, Esq., John P. Fuller, Esq., and Celeste E. Webb, Esq.

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FILED

January 10, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
McKinney for the injuries on December 22, 2016. Ms. McKinney reported to Dr. Whitfield 

that she did not have pain in her right shoulder, right elbow, right hip, and low back until 

she fell at work. In addition to diagnoses related to Ms. McKinney’s upper extremity and 

right hip, Dr. Whitfield also diagnosed a low back muscular strain noting that she likely 

twisted her back in the fall.

On February 20, 2017, an MRI of the lumbar spine revealed multilevel disc 

degeneration without a disc herniation. Among the findings of a cervical MRI performed 

on March 22, 2017, were degenerative disc disease and spondylosis, as well as shallow disc 

protrusions at C3-4 and C4-5. Also, broad-based, mixed spondylitic disc protrusions 

contacting the spinal cord at C5-C6 and C6-C7 were noted. A second MRI of the lumbar 

spine performed on April 16, 2018, showed degenerative changes with areas of neural 

foraminal narrowing, slightly worsening in the interval between this imaging and that 

performed in February 2017.

On October 30, 2018, Ms. McKinney underwent discectomies at C5-C6 and C6-C7 

and a fusion from C5 through C7 performed by Rajesh Vitthal Patel, M.D. Dr. Patel’s 

postoperative diagnoses were cervical disc protrusions at C5, C6, and C7, with 

radiculopathy at those levels and possible early myelopathy. He also diagnosed 

neuroforaminal stenosis at the aforementioned levels of the cervical spine.

Christopher Martin, M.D. performed an independent medical evaluation of Ms. 

McKinney on June 30, 2020. After examining Ms. McKinney and reviewing the medical 

records from the claim, Dr. Martin opined that he did not find support for any diagnosis 

related to the cervical spine or lumbar spine that was related to the work accident on 

November 23, 2016. In part, Dr. Martin’s rationale was based upon the MRI studies that 

showed cervical spondylosis, which he said was an age-related, degenerative condition and 

not a post-traumatic abnormality. Additionally, Dr. Martin did not feel that the cervical 

surgery and other treatments were medically necessary as a result of the compensable 

injury.

It appears that the claim administrator did not issue a compensability ruling until it 

issued the order dated August 5, 2020, holding the claim compensable for contusions of the 

right shoulder and right hip. This order is the subject of the current litigation.

On February 22, 2021, Bruce A. Guberman, M.D. examined Ms. McKinney and 

observed that the compensable conditions in the claim were contusion of the right shoulder, 

status post right shoulder arthroscopic subacromial decompression and acromioplasty, and 

history of contusion of the right hip. Dr. Guberman opined that the injury also involved Ms. 

McKinney’s cervical and lumbar spine, but he noted that no spinal conditions had been ruled 

compensable in the claim. Further, the diagnoses proposed by Dr. Guberman were a chronic 

posttraumatic strain of the cervical spine, superimposed on preexisting but dormant 

degenerative joint and disc disease, and a corresponding condition for the lumbar spine.

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Dr. Guberman asserted that these conditions of the cervical spine and lumbar spine were 

directly and causally related to the injury. In particular, Dr. Guberman noted that Ms. 

McKinney’s treatment records indicated that she underwent cervical spine surgery, and 

conservative care for her lumbar spine following the work accident.

In a report dated August 9, 2021, Prasadarao Mukkamala, M.D. noted that he 

evaluated Ms. McKinney on May 26, 2021, concerning this claim. In pertinent part, Dr. 

Mukkamala noted that the claim administrator held the claim compensable for contusions 

of the right shoulder and right hip. Thus, Dr. Mukkamala determined that impairment 

calculations related to Ms. McKinney’s neck and back were inappropriate because those 

conditions were not compensable. Further, Dr. Mukkamala mentioned that initial treatment 

providers did not document neck or low back injuries, nor was Ms. McKinney symptomatic 

in these areas at the time of the injury. Dr. Mukkamala observed that such symptoms were 

ubiquitous in older individuals, such as Ms. McKinney.

On February 7, 2022, the OOJ reversed the claim administrator’s August 5, 2020, 

order and held that cervical sprain and lumbar sprain were compensable diagnoses in the 

claim along with a contusion of the right shoulder and contusion of the right hip. The 

rationale of the OOJ in adding these conditions was that it appeared that the claim 

administrator had covered the significant cervical surgery, indicating that it had accepted a 

cervical injury as compensable. Additionally, the OOJ determined that at the time of the 

injury Ms. McKinney had reported a back injury, and Drs. Whitfield and Patel, both 

orthopedic surgeons, confirmed the diagnoses. Finally, the OOJ also said it was reasonable 

to find that the mechanism of the injury could have caused injuries to the cervical and lumbar 

spine. However, the OOJ stopped short of finding that all of Ms. McKinney’s lumbar and 

cervical complaints were attributable to her work injury since diagnostic testing 

demonstrated preexisting conditions in the spine.

Ms. McKinney appealed the OOJ order dated February 7, 2022, to the Board, 

arguing that chronic posttraumatic strain of the cervical spine superimposed on preexisting, 

but dormant, degenerative joint and disc disease, and chronic posttraumatic strain of the 

lumbosacral spine superimposed on preexisting, but dormant, degenerative joint and disc 

disease should have been ruled compensable. By order dated August 8, 2022, the Board 

affirmed the OOJ’s ruling regarding the compensable conditions.3 It is from the Board’s 

ruling on compensability that Ms. McKinney now appeals.

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

part, as follows:

3 The Board’s order modified the OOJ’s ruling concerning a PPD award, finding the 

ruling was premature because the cervical and lumbar sprains were not rated. The Board 

returned this issue to litigation, and Ms. McKinney does not now contest this ruling.

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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.

On appeal, Ms. McKinney argues that the Board erred in failing to find compensable 

the conditions of chronic posttraumatic strain of the cervical spine superimposed on 

preexisting, but dormant, degenerative joint and disc disease, and the corresponding lumbar 

spine condition. Ms. McKinney asserts that the record establishes that the conditions were more 

likely than not a result of the injury as evidenced by the fact she could perform her job duties 

until the injury occurred, whereupon she had immediate symptoms, and there was no evidence 

of prior cervical or lumbar symptoms. Further, that cervical surgery was approved in the claim 

and performed, Ms. McKinney argues, is evidence that the injuries she sustained were more 

severe than simple sprains. Ms. McKinney argues that Dr. Guberman more accurately 

diagnosed her conditions, and he noted that her preexisting degeneration was “dormant” until 

the injury. Dr. Guberman’s diagnosis, she adds, included the chronic nature of her symptoms 

that have been ongoing since the injury.

In support of her argument, Ms. McKinney cites Syllabus Point 5, Moore v. ICG 

Tygart Valley, LLC, __ W.Va. __, 879 S.E.2d 779 (2022), which states:

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.

After review, we are not persuaded that the Board erred in affirming the OOJ’s 

decision that held the claim compensable for lumbar sprain and cervical sprain, but

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declining to add to the claim the chronic posttraumatic strain of the cervical spine 

superimposed on preexisting, but dormant, degenerative joint and disc disease, and the 

corresponding condition for the lumbar spine.

We note that the diagnoses Ms. McKinney seeks to be added to the claim implicitly 

include the preexisting degenerative joint and disc disease conditions. Including these 

conditions would be contrary to the Court’s ruling in Moore that held compensable the 

discrete new condition of cervical radiculopathy but not the underlying cervical 

degenerative disc disease. The Moore Court specifically noted that its “holding in Gill is 

still applicable.” Id. at *7. We note that pursuant to Syllabus Point 3, Gill v. City of 

Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016),

[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.

In the present case, we find no error in the OOJ’s decision that the conditions Ms. 

McKinney asserts should be added to the claim are preexisting conditions that were merely 

aggravated by the compensable injury and do not qualify as discrete new injuries. On the 

other hand, the cervical sprain and lumbar sprain found compensable by the OOJ and 

affirmed by the Board satisfy the analysis set out under both Moore and Gill. Finding no 

error, we affirm.

Accordingly, we affirm.

Affirmed.

ISSUED: January 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen

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