### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

SAINT-GOBAIN CERAMICS & PLASTICS, INC., FILED

March 21, 2018 

### Employer Below, Petitioner

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### vs.) No. 17-0983 (BOR Appeal No. 2052021) (Claim No. 2012022565)

CHRISTOPHER S. RUSH, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Saint-Gobain Ceramics & Plastics, Inc. 1 , by James W. Heslep, its attorney, appeals the decision of the West VirginiaWorkers’ Compensation Board of Review 2

.

The issue on appeal is whether Mr. Rush is entitled to the requested medical benefits in this claim. In an Order dated June 7, 2016, the claims administrator de nied author ization to reopen the claim for medical benefits and for em ergency department treatment at St. Joseph’s Hospital on April 30, 2016. The Offi ce of Judges reversed the clai ms administrator’s decision, and ordered that Mr. Rush be granted retroac tive authorization for th e April 30, 2016, emergency department visit at St . Joseph’s Hospital. The Office of J udges further Ordered that the claim remain open for medical benefits. This appeal ar ises from the Board of Review’s Final Order dated October 4, 2017, in which the Board affirmed the Order of the Office of Judges. The Court has carefully reviewed th e records, written arguments, and appendices contained in the briefs,

and the case is mature for consideration.

This Court has considered the employer’s br ief and the record on appeal. The facts and legal arguments are adequately presented, and the decisional proc ess would not be significantly aided by oral argument. Upon consideration of the standard of review, the brief of Saint-Gobain Ceramics & Plastics, Inc., and the record pres ented, the Court finds no substantial question of

1 The style of the case in the Board of Review’s Order dated October 4, 2017, lists the employer as Corhart Refractories Corporation. However, counsel for the employer uses the name Saint-Gobain Ceramics & Plastics, Inc., in this Petition for Appeal. It is noted that Corhart Re fractories Corporation is a subsidiary of the Saint-Gobain Corporation.

2 Christopher S. Rush did not file a response.

1law and no prejudicial error. Fo r these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Mr. Rush is a maintenance worker at Co rhart Refractories Cor poration’s production facility. He sustained a compensable lumbar spine injury while removing a pump from a box while working on October 10, 2011. The claim was held compensable for lumbar strain by a claims administrator Order dated January 25, 2012. The Order did not hold ne uralgia/neuritis as a compensable condition.

Mr. Rush underwent an MRI on April 19, 2013, which revealed a large left-sided disc herniation at the L3-L4 level. The imaging also rev ealed a disc bulge at the L4-L5 level, as well as a synovial cyst at that level. The report stated that there was a disc bulge at the L5-S1 level that had some contact with the exiting right L5 nerve root. Mr. Rush was referred to a

neurosurgeon.

On May 13, 2014, Mr. Rush underwent a second MRI, which showed mild bulging at L5

- S1, with mild facet osteophyte di sease on the right. No spinal canal or foraminal stenosis was observed. At L4-L5, there was mild loss of height in signal intensity. A small central disc protrusion was seen with a small area of increase d signal intensity in a nnulus compatible with annular fissure. No foraminal stenosis or spinal canal stenosis was seen. The L3-L4 disc showed loss of disc height and signal intensity. Central and left central disc herniation was noted. The impression listed was degenerative disc disease with small herniation seen at L3-L4 and L4-L5 levels. On April 25, 2014, the claims administra tor authorized the MRI and the approval of physical therapy from March 11, 2014, to June 17, 2014.

Mr. Rush saw Joseph Grady, M.D., on October 14, 2013, for an independent medical evaluation. According to Dr. Grady, Mr. Rush felt a sudden onset of pain in his lumbar spine that radiated to the right leg when he lifted a pump from a box. Mr. Rush continued working and sought treatment with his primary care physic ian, John Mathis, M.D., on January 13, 2012. Dr. Mathis prescribed physical therapy, which provided some re lief. At the time of his evaluation with Dr. Grady, Mr. Rush reported no tenderness, a nd his straight-leg raising tests were negative. Dr. Grady diagnosed lumbar sprain with a re ported lumbar disc herniation at L3-L4, with bulging discs from L4 to S1. Dr . Grady observed no signs of radi culopathy. Dr. Grady noted that Mr. Rush’s lumbar spine continued to be sy mptomatic. Dr. Grady found that Mr. Rush had reached his maximum degree of medical improve ment, and utilized the American Medical

Association’s Guides to the Evaluation of Permanent Impairment (4 th ed. 1993), to find that Mr. Rush has 0% impairment for his compensable conditions.

On October 25, 2013, the claims administrator granted Mr. Rush a 0% permanent partial disability award based upon Dr. Grady’s medical evaluation. The claims administrator’s decision was affirmed by the Office of Judges in an Order dated January 7, 2015.

On August 11, 2014, the claims administrator approved several additional conditions to

Mr. Rush’s claim. The conditions of displacement of the lumbar intervertebral disc without myelopathy, overexertion and strenuous movements, and sprain of the lumbar region were added

2to the claim as compensable components. The cl aims administrator’s decision to include the additional components was based upon Mr. Rush’s MRI dated April 19, 2013.

On April 30, 2016, Mr. Rush reported to th e emergency room at St. Joseph’s Hospital with complaints of low back pain. The clinical notes from that emergenc y room encounter state that Mr. Rush had not sustained any recent, known injury to his low back. Mr. Rush was diagnosed with acute chronic low back pain. He was treated and discharg ed in stable condition. Subsequent to his emergency room visit, Mr. Ru sh sought coverage unde r his current workers’ compensation claim.

In response to his request for coverage for the emergency room visit, the claims administrator requested that Syam Stoll, M.D., review the claim. Dr. Stoll provided a Physician’s Review report on June 3, 2016, and noted that Mr. Rush sustained a lumbar sprain /strain injury approximately five years earlier. Based on the age of the injury, and the lack of ongoing treatment, Dr. Stoll recommended that Mr. Rush’s treatment for low back pain not be covered under Mr. Rush’s workers’ compensation clai m. By Order dated June 7, 2016, the claims administrator denied Mr. Rush’s request to reope n the claim for treatment for low back pain. Mr. Rush protested the claims administrator’s decision.

A deposition of Mr. Rush was taken on November 10, 2016. Mr. Rush testified that he continued to work following his work relate d injury on October 10, 2011, and he experienced some lumbar flare-ups after that time. He stated that his symptoms increased to the point that he had to seek treatment at St. Joseph’s Hosp ital on April 30, 2016, where he presented with complaints of low back pain radiating to his lower extremity. Mr. Rush denied any intervening injuries, and he testified that, while working, he took care not to reinjure his back. Although his current symptoms are in the same location as the compensable injury, Mr. Rush testified that his current pain is sharper than what it was previ ously. Mr. Rush testified that the severe pain rendered him unable to perform basic activities of daily living, including the ability to dress.

On appeal, the Office of Judges addre ssed the claims administrator’s reopening determination, as well as Mr. Rush’s request fo r retroactive authorization for his emergency room visit. The Office of Judges found that the claims administrator wa s clearly wrong when it suggested that Mr. Rush needed to reopen hi s claim for benefits. Although Mr. Rush’s last authorized treatment was twenty-t wo months prior to his request for authorized treatment at St. Joseph’s Hospital, the Office of Judges determined that he was within the five-year period for additional treatment enumerated in West Virgin ia Code § 23-4-16(a)(4) (2005). The Office of Judges found that the evidence shows that Mr. Rush had no lumbar symptoms or injuries prior to his date of injury of October 10, 2011, and concl uded that Mr. Rush is en titled to treatment for his herniated lumbar disc and ongoing symptoms. The claims admini strator’s Order dated June 7, 2016, was reversed, and the Office of Judges held that it is more likely than not that the medical services that were provided at St. Joseph’s Hospital were for symptoms related to the compensable lumbar herniated disc. The Office of Judges also ordered that the claim remain open for medical benefits. The Bo ard of Review adopted the findings and conclusions of the Office of Judges and affirmed its Order on October 4, 2017.

3After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. Mr. Rush ha s proved by a preponderance of the evidence that the treatment he received on April 30, 2016, in the emergency department at St. Joseph’s Hospital was to treat his injury received in the c ourse of and as a result of his employment. The Office of Judges and Board of Review correctly determined that Mr. Rush received reasonably required medical treatment for hi s compensable herniated lumbar disc. The Office of Judges and Board of Review also correctly held that the claim should remain open for authorized medical benefits pursuant to West Virg inia Code § 23-4-16( a)(4), which allows claimants to request medical treatment within five years from the la st date a claimant received authorized medical

treatment. The evidence of record indicates that Mr. Rush is within the five-year treatment period enumerated in the statute, and the claim s hould remain open for additional treatment.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: March 21, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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