IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2023 Spring Term 

_____________________________

No. 22-ICA-262

_____________________________

BLACKHAWK MINING, LLC, 

Employer Below, Petitioner

v. 

HARRIS ARGABRIGHT,

Claimant Below, Respondent

__________________________________________________________________

Appeal from the Workers’ Compensation Board of Review

(Appeal No.: 2058334)

(JCN: 2021020512) 

REVERSED, in part, AFFIRMED, in part.

__________________________________________________________________

Submitted: March 22, 2023

Filed: May 1, 2023

Jeffrey B. Brannon, Esq. Lori J. Withrow, Esq.

Cipriani & Werner PC Reginald D. Henry, Esq.

Charleston, West Virginia Reginald D. Henry, PLLC

Counsel for Petitioner Mabscott, West Virginia

 Counsel for Respondent 

CHIEF JUDGE GREEAR delivered the Opinion of the Court.

FILED

May 1, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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GREEAR, Chief Judge:

Petitioner, Blackhawk Mining, LLC, (“Blackhawk”) appeals the Workers’ 

Compensation Board of Review (“BOR”) affirmation of the Workers’ Compensation 

Office of Judges’ (“OOJ”) order adding the diagnoses of disc bulges from L2-L3 through

L5-S1 as compensable conditions and authorizing the request for a referral to Rajesh Patel, 

M.D. Based upon the parties’ arguments, the record on appeal, and the applicable law, this 

Court finds that the BOR’s October 21, 2022, order is clearly wrong in finding that the disc 

bulges are compensable conditions, but not clearly wrong in ordering a referral to Dr. Patel. 

Accordingly, we hereby reverse, in part, and affirm, in part, the BOR’s October 21, 2022,

order.

I. Factual and Procedural Background

Respondent Harris Argabright, an electrician for Blackhawk Mining, was injured at 

work on February 26, 2021, when he tightened a strap on a speed reducer and felt 

something pull in his lower back/pelvis. Mr. Argabright sought medical treatment that day 

and was diagnosed with a lumbar sprain. X-rays revealed no acute abnormality, mild L3-

L4 disc space narrowing, mild L5-S1 disc space narrowing, and bilateral facet arthropathy.

On March 9, 2021, Mr. Argabright underwent an MRI of his lumbar spine. The 

impression of the MRI showed degenerative disc desiccation and suggestion of mild disc 

bulge at T11-T12, and minimal to mild disc bulges from L2-L3 through L5-S1. On April 

26, 2021, Mr. Argabright saw Jeffrey Prichard, PA-C, and reported low back pain with 
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decreased range of motion that was not improving. He was diagnosed with a lumbar sprain. 

On April 29, 2021, Michael Muscari, D.O., requested that Mr. Argabright be referred to

Dr. Patel, noting an increase of pain, a decrease in range of motion, and a worsening

symptoms.

Prasadarao Mukkamala, M.D., performed an independent medical examination 

(“IME”) of Mr. Argabright on May 11, 2021. Dr. Mukkamala diagnosed lumbar sprain 

superimposed upon preexisting noncompensable degenerative spondyloarthropathy, and 

found that Mr. Argabright had reached Maximum Medical Improvement (“MMI”). Dr. 

Mukkamala assessed him with an 8% whole person impairment and apportioned 5% to 

preexisting conditions. Dr. Mukkamala also found there was no indication to refer Mr. 

Argabright for surgery or any other treatment, as there was no objective evidence of 

radiculopathy and no spinal instability. Based on this report, the claim administrator issued 

an order dated May 17, 2021, which denied the request for a referral to Dr. Patel. Mr. 

Argabright protested this order.

On June 21, 2021, Dr. Muscari submitted a diagnosis update requesting that “disc 

bulge L2, L3, L5, S1” be added as compensable conditions in the claim on the basis that 

the MRI showed multiple disc bulges.

1 By order dated July 1, 2021, the claim administrator 

denied this request. Mr. Argabright protested this order. Mr. Argabright submitted 

1 Dr. Muscari’s diagnosis update fails to add the disc bulge at L4 as a compensable 

condition. However, the OOJ and the BOR found the disc bulge at L4 to be compensable. 
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correspondence from Dr. Muscari explaining that the referral to Dr. Patel was necessary 

because of Mr. Argabright’s continuing symptoms and disability. Further, Dr. Muscari 

explained therein that Mr. Argabright was able to work his entire adult life as a coal miner 

prior to this work-related injury and had no previous lumbar pain.

On January 15, 2022, Michael Brooks, M.D. issued an age of injury analysis upon 

review of the March 9, 2021, MRI. Dr. Brooks opined that the findings on the MRI were 

consistent with chronic, degenerative disc disease and facet joint arthrosis.

On May 19, 2022, the OOJ reversed the claim administrator’s orders, found the disc 

bulges at L2-L3 through L5-S1 to be compensable, and ordered a referral to Dr. Patel. The 

OOJ reasoned that Mr. Argabright’s preexisting disease or condition was asymptomatic

prior to the compensable injury, but after that injury, his symptoms appeared and were 

continuously manifested. The OOJ found that based on the preponderance of the evidence, 

Mr. Argabright had shown that the disc bulges at L2-3 through L5-S1 should be held 

compensable, and that the referral to Dr. Patel was medically related and reasonably 

required. The BOR affirmed the OOJ’s decision in its October 21, 2022, order. It is from 

that order that Blackhawk now appeals. Blackhawk’s appeal is limited solely to the issue 

of compensability of the disc bulges; it does not appeal the referral to Dr. Patel.2

2 Blackhawk’s brief makes clear that the appeal is solely on the issue of the 

compensability of the disc budges. 
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II. Standard of Review 

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, __, 882 S.E.2d 916, 921, (Ct. App. 

2022). 

III. Discussion 

On appeal, Blackhawk asserts that the BOR committed clear legal error in its 

determination that Mr. Argabright’s disc bulges at L2-L3 through L5-S1 were 

compensable. Blackhawk argues that the preponderance of the evidence establishes these

conditions were chronic and preexisting and, while aggravated or exacerbated, were not 

discrete new injuries, and thus, not compensable. 

In response, Mr. Argabright’s argument is twofold. First, he argues that there is a 

lack of evidence in the record to show the bulging discs existed prior to his compensable 
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injury. Second, he argues compensability under Moore v. ICG Tygart Valley, LLC, 247 W. 

Va. 292, 879 S.E.2d 779 (2022) based on the manifestation of his symptoms after the 

compensable injury. 

We must first address the sufficiency of the evidence to support a determination that 

Mr. Argabright’s disc bulges were caused by the compensable injury. The March 9, 2021, 

MRI report revealed degenerative disc desiccation, as well as minimal to mild disc bulges. 

There is no indication in that report that his injuries were of a traumatic nature. Dr. 

Mukkamala, after completing an IME of Mr. Argabright and reviewing relevant records,

diagnosed Mr. Argabright with lumbar sprain superimposed upon preexisting degenerative 

spondyloarthropathy. Dr. Mukkamala found that while the lumbar sprain was caused by 

the compensable injury, the degenerative condition was preexisting. Dr. Brooks authored 

an age of injury analysis and determined that Mr. Argabright suffered from chronic 

degenerative disc disease and chronic facet joint arthrosis from L2-3 through L5-S1. The 

MRI and the reports of Drs. Mukkamala and Brooks support a conclusion that the disc

bulges were preexisting. 

In contrast, Mr. Argabright argues that the diagnosis update form completed by the 

treating physician, Dr. Muscari, is evidence that the disc bulges were caused by the

compensable injury. However, neither the diagnosis update nor the other documents from 

Dr. Muscari that were made a part of the record specifically opined that the disc bulges

were caused by the compensable injury, or offered any explanation that would support such 
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conclusion. In short, Dr. Muscari asked the disc bulges to be made compensable with 

minimal justification for the request. 

Mr. Argabright’s argument that the disc bulges did not exist prior to the 

compensable injury is not supported by the clear weight of the evidence. To the extent that 

the BOR’s order finds that the disc bulges were caused by the compensable injury, that

finding is clearly wrong. 

Next, Mr. Argabright argues that because his preexisting condition was 

asymptomatic until the compensable injury, his preexisting disc bulges should be found 

compensable under the rebuttable presumption announced in Moore. We disagree. Mr. 

Agrabright’s argument fails to consider the Moore presumption in unison with the Supreme 

Court of Appeals of West Virginia’s (“SCAWV”) ruling in Gill v. City of Charleston, 236 

W. Va. 737, 783 S.E.2d 857 (2016), which Moore explicitly reaffirmed: 

“[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.” Syl. Pt. 

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

Syl. Pt. 4, Moore, 247 W. Va. 292, 879 S.E.2d 779 (2022). The Moore Court then 

expanded on Gill, holding:

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 
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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 other facts of the 

case, raises a natural inference of causation. This presumption is not 

conclusive; it may be rebutted by the employer. 

Syl. Pt. 5, 247 W. Va. 292, 879 S.E. 2d 779 (2022). 

Gill unambiguously held that a discrete new injury may be compensable when it 

arises from an aggravation of a preexisting injury. The 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 compensable. 

Compensability is limited only to discrete new injuries and disabilities that manifest 

following the compensable injury. 

Here, the BOR only addressed syllabus point five of Moore and determined the 

compensability of Mr. Argabright’s preexisting disc bulges based on the manifestation of

his symptoms following the compensable injury. Because the BOR did not consider Moore

and Gill together, we reverse the BOR’s order, in part, and find that it erred in summarily 

concluding that Mr. Argabright’s preexisting disc bulges were compensable. 

Even though the disc bulges are not compensable under this analysis, the treatment 

of the newly symptomatic disability is appropriate. In Moore, the SCAWV found cervical 

radiculopathy as a compensable condition, not the preexisting cervical degenerative disc 
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disease that was asymptomatic prior to the compensable injury. It reasoned that the 

evidence showed the compensable injury caused Mr. Moore to develop cervical 

radiculopathy, a new distinct injury. Here, Mr. Argabright’s preexisting discs and 

degenerative disc desiccation were asymptomatic prior to the compensable injury. 

Following the compensable injury, Mr. Argabright developed pain in the areas affected by 

the preexisting conditions. The treatment of that pain is presumed to flow from the 

compensable injury, not the preexisting condition. In this matter, Blackhawk did not rebut 

the presumption, nor did it contest the order for referral to Dr. Patel on appeal.

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Accordingly, we affirm the BOR’s order, in part, with respect to the referral to Dr. Patel at 

the pain clinic. 

Wherefore, based on the foregoing, we reverse, in part, and affirm, in part, the 

BOR’s October 21, 2022, order. 

 Reversed, in part, Affirmed, in part. 

3

 Blackhawk does not appeal the referral to Dr. Patel. Thus, this issue will not be 

addressed by this Court. See Wheeling Park Commission v. Dattoli, 237 W.Va. 275 n.2, 

787 S.E.2d 546 n.2 (2016) (citing Rule 10(d) of the West Virginia Rules of Appellate 

Procedure).