STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

ARCH COAL, INC., May 7, 2018 

EDYTHE NASH GAISER, CLERK Employer Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 17-1121 (BOR Appeal No. 2052107) 

 (Claim No. 2014033043) 

JAMES WISENBALER, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Arch Coal, Inc., by Jeffrey Carder, its attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. James Wisenbaler, by Christopher J. 

Wallace, his attorney, filed a timely response. 

The issues on appeal are whether lumbar herniated disc should be added as a 

compensable condition, whether additional medical treatment should be authorized, and whether 

Mr. Wisenbaler’s claim should be reopened for temporary total disability benefits. On May 20, 

2016, the claims administrator closed the claim for temporary total disability benefits. On June 

22, 2016, the claims administrator denied authorization for a second left microlumbar 

discectomy. On November 7, 2016, the claims administrator denied a request to add displaced 

lumbar intervertebral disc (herniated disc) as a secondary condition, and on November 23, 2016, 

the claims administrator denied authorization for selective nerve root blocks. The Office of 

Judges reversed each one of the claims administrator’s decisions in its July 24, 2017, Order. The 

Order was affirmed by the Board of Review on November 2, 2017. 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. Wisenbaler, a laborer, injured his low back on May 12, 2014, when he dropped 

ventilation tubing, slipped over rock, and felt pain in his back. His claim was held compensable 

for a lumbar sprain/strain on May 19, 2014. Mr. Wisenbaler had a preexisting history of lumbar 

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spine problems dating back to October of 2000, when he injured his lumbar spine unloading 

scaffolding. A March 25, 2001, lumbar MRI revealed degenerative changes and disc bulges at 

the L3-L4 through L5-S1 levels as well as narrowing of the thecal sac. Due to continued 

problems with his lumbar spine in 2001 and 2000, David Lynch, M.D., performed an 

independent medical evaluation on January 21, 2003. Dr. Lynch had evaluated Mr. Wisenbaler 

two times before. Dr. Lynch noted that Mr. Wisenbaler had declined vocational rehabilitation 

services and pain management. Mr. Wisenbaler noted constant low back pain with intermittent 

symptoms down his right leg consisting of numbness and tingling in the leg and a burning 

sensation in his toes. Dr. Lynch noted Mr. Wisenbaler showed symptom magnification on his 

last visit and was unable to do range of motion testing. Dr. Lynch diagnosed chronic pain 

syndrome, history of lumbosacral strain, history of degenerative changes with disc bulges, nonsurgical lesion, and non-focal neurologic examination. Dr. Lynch opined that Mr. Wisenbaler 

had 15% whole person impairment. He noted that number may be inflated due to Mr. 

Wisenbaler’s fear and pain limiting him from true range of motion. 

On October 23, 2003, P. Kent Thrush, M.D., performed an independent medical 

evaluation. He noted that Mr. Wisenbaler complained of constant aching in his low back, which 

was aggravated by bending, lifting, and prolonged sitting. He also had occasional pain radiating 

down his right leg and tingling in the left foot. His symptoms had increased over the last year. 

Dr. Thrush diagnosed lumbar sprain and early to moderate spinal stenosis of the lumbar spine 

with disc bulging at L3-L4, L4-L5, and L5-S1. He opined that the stenosis may increase over 

time and recommended Mr. Wisenbaler find a job that did not require a lot of repetitive heavy 

lifting and/or bending due to his back problems, spinal stenosis, degenerative changes and disc 

bulging. In an October 30, 2003, addendum, Dr. Thrush opined that Mr. Wisenbaler had 

“considerable degenerative changes in his back for someone only 30 years old”. He agreed with 

the recommendation not to proceed with surgery as Mr. Wisenbaler had a difficult problem with 

multilevel disease and no one large single disc herniation. 

After Mr. Wisenbaler’s May 12, 2014 injury, a lumbar spine MRI was performed on May 

30, 2014. It revealed evidence of mild facet arthropathy at all levels; disc bulging at L3-L4 with 

a small central disc protrusion; diffuse disc bulge at L4-L5 without significant central or 

foraminal stenosis; and a central disc protrusion at L5-S1 with mild mass effect on the thecal sac 

effacing both S1 nerve roots. Bill Underwood, M.D., treated Mr. Wisenbaler on June 18, 2014. 

Dr. Underwood noted Mr. Wisenbaler presented with complaints of lower back pain that radiated 

into his left lower extremity, numbness and tingling in his left great toe and cramping in his left 

thigh. The pain was worse with standing. Dr. Underwood diagnosed left L5 radiculopathy with 

multilevel degenerative issues and multilevel small disc protrusions without significant 

impingement. He recommended physical therapy and a pain management evaluation. 

On August 11, 2014, Mr. Wisenbaler was seen by Russell Biundo, M.D., for complaints 

of low back pain radiating into his left leg. Dr. Biundo opined that Mr. Wisenbaler had an L3-L4 

paracentral disc herniation that was compressing the L4 nerve root. He referred him back to Dr. 

Underwood to discuss surgical options and recommended continued physical therapy. 

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On August 7, 2014, Dr. Thrush performed an independent medical evaluation. Mr. 

Wisenbaler reported continuing daily low back pain with radiation down the left leg into the 

thigh, calf, and foot. He denied any significant symptoms in between 2003 and the May 12, 

2014, work injury. Dr. Thrush diagnosed lumbar sprain on top of pre-existing degenerative 

arthritis and degenerative disc disease and recommended continued physical therapy. 

Dr. Biundo saw Mr. Wisenbaler for chief complaints of low back pain and leg weakness 

on September 22, 2014. Dr. Biundo noted generalized left leg muscle atrophy. He also noted the 

July 9, 2014, MRI showed an L3-L4 herniated disc with nerve root impingement. He assessed 

left leg weakness, lumbar herniated disc at L3-L4, and pain to the left hip/pelvis. Dr. Biundo 

recommended follow-up with pain management, a pelvic MRI, and EMG/NCV testing. On 

December 1, 2014, Dr. Biundo diagnosed an L5 radiculopathy on the left based on the MRI 

findings. He recommended an L4-L5 nerve block and physical therapy. 

On March 17, 2015, Dr. Joseph Grady, M.D., performed an independent medical 

evaluation for the compensable condition of back strain/sprain. His assessment was multilevel 

lumbar spondylosis with reported left L3-L4 disc herniation with left L5 nerve root impingement 

on MRI and left L5 radiculopathy on EMG nerve conduction study and physical examination. 

Dr. Grady recommended Mr. Wisenbaler follow-up with the neurosurgeon and undergo a repeat 

MRI if requested to do so by the neurosurgeon. Dr. Grady noted Mr. Wisenbaler’s lumbar 

sprain/strain had resolved. However, he had diffuse structural abnormalities with lumbar 

spondylosis throughout his lower back, which was pre-existing. But, some exacerbation of the 

conditions could have occurred due to the work injury. Dr. Grady opined that surgery would 

potentially benefit Mr. Wisenbaler’s left leg symptoms. 

Dr. Underwood performed left-sided L3-L4 and L5-S1 microdiscectomies on June 9, 

2015. The pre and post-operative diagnosis was left-sided L3-L4 herniated nucleus pulposus. On 

June 23, 2015, Mr. Wisenbaler was seen by Koshy Mathai, M.D., who noted his low back and 

left lower extremity pain had improved. Dr. Biundo diagnosed low back pain, left lumbosacral 

radicular syndrome, lumbar disc disease, lumbar stenosis, and lumbar facet arthropathy. An 

August 14, 2015, lumbar MRI revealed multilevel intervertebral disc disease and facet 

hypertrophic changes as well as post-surgical changes at L3-L4 and L5-S1. The disc herniation 

at L3-L4 decreased in size with decreased impingement on the left L4 nerve root within the 

lateral recess. 

Mr. Wisenbaler continued to treat with Dr. Biundo, who diagnosed status post herniated 

disc with significant improvement following the L3-L4, L5-S1 discectomy on August 17, 2015. 

On September 28, 2015, Dr. Biundo noted that during the prior week, Mr. Wisenbaler was 

bending forward to get clothes out of his dryer when he twisted his back and had pain and 

discomfort across the lower back with more pain and discomfort than ever. He had radiating pain 

in the left lower extremity and difficulty walking. Dr. Biundo noted an antalgic gait pattern that 

was inconsistent. He recommended physical therapy, the use of a TENS unit, and Neurontin. On 

October 28, 2015, Dr. Biundo noted the claimant had a herniated disc and they were waiting on 

recommendations from Dr. Underwood before moving forward. 

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A November 18, 2015, lumbar MRI revealed enhancing scar tissue surrounding the S1 

nerve root, decreased fluid in the left hemilaminectomy defect at L3-L4, and enhancement of the 

facet joint at L3-L4, which was present on the previous study as well. Dr. Underwood 

recommended a re-do of the L5-S1 microlumbar discectomy on December 7, 2015. Dr. Biundo 

agreed that Mr. Wisenbaler would benefit from the discectomy on January 4, 2016. 

ChuanFang Jin, M.D., performed an independent medical evaluation on March 15, 2016, 

for a compensable diagnosis of lumbar strain/sprain. She noted a chief complaint of back pain as 

well as constant left leg pain and occasional right leg pain. Mr. Wisenbaler was unable to sit, 

stand, or complete a task for more than thirty minutes. He was unable to do physical activity. Dr. 

Jin noted that Mr. Wisenbaler walked with a limp, had difficulty with heel and toe walking, and 

did not pass the validity test with range of motion testing. Mr. Wisenbaler complained of severe 

pain while doing range of motion. Dr. Jin’s impression was a history of mechanical injury to the 

lumbar spine with diagnoses of lumbar sprain/strain; pre-existing lumbar 

spondylosis/degenerative lumbar disc disease; and status post microdiscectomy at L3-L4 and L5-

S1. Dr. Jin opined that the lumbar sprain/strain did not require surgical treatment. The first 

surgery was for the degenerative disc disease. In her opinion, surgery was not a cure for 

degenerative disease, so recurrent symptoms were common. She noted that Mr. Wisenbaler was 

only pain free for two to three months following the surgery. She opined this was an “indicator 

of unfavorable outcome for additional surgery”. In her opinion, the recurrent back pain was not 

due to bending over to pick up socks, but to the underlying pathology of degeneration in the 

lumbar spine. In her opinion, the second surgery for revision of the lumbar microdiscectomy is 

for the degenerative lumbar disc disease. She also questioned the medical necessity for the 

surgery given the outcome of the first surgery. 

On May 20, 2016, the claims administrator closed the claim for temporary total disability 

benefits as the claims administrator had not received any medical evidence showing Mr. 

Wisenbaler had been taken off of work due to his work-related injury. On June 22, 2016, the 

claims administrator denied authorization of a request by Dr. Underwood for a redo of a left L5-

S1 microlumbar discectomy based on Dr. Jin’s opinion that the surgery was not medically 

warranted or recommended. On October 17, 2016, Dr. Biundo completed a diagnosis update 

form requesting that lumbar herniated disc/displaced lumbar disc be added as compensable. He 

noted that Mr. Wisenbaler’s clinical presentation was and always had been herniated disc due to 

the work injury. On November 7, 2016, the claims administrator denied a request to add 

displaced lumbar intervertebral disc as a secondary condition because the condition was not 

causally related to the injury. On November 23, 2016, the claims administrator denied 

authorization of a request by Dr. Biundo for selective nerve root blocks as no further treatment 

was needed for the injury based on Dr. Jin’s report. 

In its July 24, 2017, Order, the Office of Judges found that displaced lumbar 

intervertebral disc should be added as a compensable condition. Drs. Underwood and Biundo 

noted lumbar and left lower extremity symptoms, including radiculopathy, and the MRIs showed 

herniated discs at L3-L4 and L5-S1. Moreover, Drs. Grady and Weiss found the surgery for the 

herniated discs was medically necessary. The Office of Judges noted that Mr. Wisenbaler had a 

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history of lumbar spine problems but found he had no treatment or symptoms in the days, weeks, 

or years leading up to the May 12, 2014, injury. Additionally, there was no evidence that Mr. 

Wisenbaler had herniated discs prior to the date of injury. Therefore, the Office of Judges found 

that a preponderance of the evidence supported the addition of displaced lumbar intervertebral 

disc as a compensable condition. 

The Office of Judges then addressed the authorization for a redo of the left L5-S1 

discectomy. It found that Mr. Wisenbaler had proven by a preponderance of the evidence that the 

surgery was reasonably required. It determined that the opinion of Drs. Underwood and Biundo, 

that the surgery was reasonable and necessary, outweighed the opinion of Dr. Jin. The Office of 

Judges noted the claims administrator had authorized the first surgery and therefore should 

authorize the second surgery. It also noted that Dr. Jin was not a neurosurgeon and Dr. 

Underwood was. 

The Office of Judges moved on to the issue of the nerve root blocks and found the blocks 

should have been authorized. The treatment was denied based upon the opinion of Dr. Jin 

because the treatment was for the degenerative disc condition and not the compensable condition 

in the claim. It found the request of Dr. Biundo was reasonable treatment for the work injury, as 

Dr. Biundo requested the nerve blocks for treatment of the herniated discs and not the 

degenerative conditions. 

Finally, the Office of Judges addressed the issue of temporary total disability benefits 

which had been closed on May 20, 2016, because Mr. Wisenbaler had not submitted medical 

evidence showing his continued temporary total disability status. The Office of Judges noted the 

decision to terminate the temporary total disability was based on the opinion of Dr. Jin. It found 

that Dr. Jin’s opinion did not accurately entail the treatment history of Mr. Wisenbaler, as she did 

not address the herniated discs. The Office of Judges determined that Mr. Wisenbaler was unable 

to work due to the disc herniations and not the degenerative conditions. Therefore, it found Mr. 

Wisenbaler was entitled to temporary total disability benefits from the date the benefits were 

terminated and thereafter with substantiated evidence of his continuing disability. The Board of 

Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed 

its Order on November 2, 2017. 

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. The main issue was the compensability of the herniated discs. 

Arch Coal, Inc., correctly pointed out that Mr. Wisenbaler had a long history of lumbar spine 

problems. However, there was no evidence he had preexisting herniated discs. Therefore, the 

Board of Review was correct to affirm the finding that the herniated discs were compensable. 

The contested medical treatment and temporary total disability are for the herniated discs and 

therefore the Board of Review did not err when it ordered payment of the benefits. 

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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. 

ISSUED: May 7, 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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