STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

BONNIE S. RHODES, December 19, 2017 

Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 17-0544 (BOR Appeal No. 2051776) 

(Claim No. 2014025570) 

REYNOLDS MEMORIAL HOSPITAL, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Bonnie S. Rhodes, by Christopher J. Wallace, her attorney, appeals the 

decision of the West Virginia Workers’ Compensation Board of Review. Reynolds Memorial 

Hospital, Inc., by James W. Heslep, its attorney, filed a timely response. 

The issue on appeal is whether L4-5 degenerative spondylolisthesis and lumbar spinal 

stenosis should be added to the claim, whether lumbar spine surgery should be authorized, and 

whether temporary total disability benefits should be granted. The claims administrator closed 

the claim for temporary total disability benefits on August 11, 2015. On March 3, 2016, the 

claims administrator denied an L4-5 decompression and posterior fusion surgery and the addition 

of L4-5 degenerative spondylolisthesis and lumbar spinal stenosis to the claim. The Office of 

Judges affirmed the decisions in its January 10, 2017, Order. The Order was affirmed by the 

Board of Review on May 19, 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. 

Ms. Rhodes, a nurse’s assistant, was injured in the course of her employment on 

February 18, 2014, while lifting a patient. The employee’s and physician’s report of injury 

indicates she was injured pulling a patient up in her bed. She sought treatment that day and was 

diagnosed with a lumbar strain. It was noted that she could return to modified work on February 

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20, 2014. The claim was held compensable for lumbar sprain, and the claims administrator 

closed the claim for temporary total disability benefits on April 18, 2014. 

A lumbar MRI taken on May 3, 2014, showed an L4-5 disc bulge, a small lateral disc 

herniation, and facet arthropathy resulting in moderate spinal stenosis and bilateral recess 

stenosis. At L5-S1 there was degenerative disease of the bulge and a central protrusion without 

stenosis. At L3-4 there was bulging and spurring as well as facet arthropathy without stenosis. 

In a February 10, 2015, independent medical evaluation, ChuanFang Jin, M.D., noted that 

Ms. Rhodes had lower back pain radiating into the right leg. Her MRI was suggestive of 

degenerative changes of the spine and degenerative disc disease. Dr. Jin opined that it is likely a 

preexisting condition and likely not the result of direct trauma. The diagnosis of lumbar 

sprain/strain was determined to be consistent with the mechanism of injury. Ms. Rhodes tripped 

over a linen cart in November of 2014 and reported worsening symptoms as well as the new 

symptom of urinary incontinence. Dr. Jin opined that she needed a new lumbar MRI but stated 

that it was necessary for the November injury. Ms. Rhodes had not yet reached maximum 

medical improvement due to her new symptom. She was unable to work at that time in her 

preinjury position. She could work at reduced capacity, though accommodations would be 

difficult. Dr. Jin recommended the lumbar MRI. If the MRI failed to show any nerve root or 

spinal cord compression, she was probably at maximum medical improvement. Dr. Jin stated that 

Ms. Rhodes’s symptoms are more related to degeneration than a simple sprain/strain. 

The claims administrator approved the repeat lumbar MRI on February 11, 2015. The 

MRI, taken on February 21, 2015, showed moderate spinal stenosis due to a disc bulge, spurring, 

and advanced facet arthropathy at L4-5. At L5-S1 there was a small right disc herniation 

resulting in mild right sacroiliac lateral recess stenosis. At L3-4 there was a disc bulge, spurring, 

and facet arthropathy without disc herniation or stenosis. 

In an April 10, 2015, treatment note, Jack Wilberger, M.D., diagnosed back and leg pain. 

He stated that based on his evaluation, he cannot make any clear structural correlations between 

the complaints and the findings seen on the MRI. He recommended a lumbar myelogram. A 

lumbar myelogram was performed and showed moderate spinal stenosis and the potential for 

bilateral L4 radiculopathy. A CT scan showed a disc bulge with facet arthritic changes resulting 

in moderate spinal stenosis at L4-5. It also showed a small protrusion at L5-S1. 

In a July 20, 2015, independent medical evaluation, Dr. Jin listed her impression as 

history of mechanical back injury with lumbar sprain/strain and preexisting degenerative disc 

disease with moderate stenosis at L4-5. Dr. Jin opined that Ms. Rhodes may require surgical 

decompression for the stenosis; however, that was not causally related to the compensable injury 

and was instead the result of the noncompensable, preexisting degenerative disc disease. Ms. 

Rhodes had reached maximum medical improvement for the compensable injury. She noted that 

the lumbar sprain did not accelerate or cause the degenerative process. Her current symptoms are 

the result of her preexisting, underlying degenerative disc disease and its natural progression. 

Ms. Rhodes had reached maximum medical improvement for the compensable lumbar strain. 

She reiterated that a lumbar sprain superimposed on degenerative disc disease is not a latent or 

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progressive injury and does not cause or accelerate the degenerative process. Dr. Jin assessed 5% 

impairment. She stated that Ms. Rhodes’s significant degenerative disc disease may need further 

treatment, including possible surgery; however, the treatment is not compensable because it is 

not necessary for the treatment of the work-related injury. 

In a treatment note dated January 5, 2016, John France, M.D., noted that Ms. Rhodes had 

attempted many non-operative treatments but they had failed. Her symptoms are ongoing and 

worsening and the result of the compensable injury. Dr. France recommended surgery. On 

January 26, 2016, Dr. France completed a diagnosis update seeking to add L4-5 degenerative 

spondylosis and lumbar spinal stenosis as secondary conditions. 

Rebecca Thaxton, M.D., performed a physician review dated February 4, 2016, in which 

she found that payment for lumbar spine surgery and the addition of the diagnosis of L4-5 

degenerative spondylolisthesis and lumbar spinal stenosis to the claim should be denied. Dr. 

Thaxton noted that the compensable lumbar sprain/strain occurred on top of preexisting 

degenerative changes. As Dr. Jin specifically discussed in her independent medical evaluation, 

any necessary surgery is not causally related to the compensable injury. The spinal stenosis was 

not caused by the compensable injury. 

A lumbosacral x-ray taken on February 16, 2016, noted surgical changes at L4-5. The 

bones overall were demineralized. Spondylitic defects were noted outside of the surgical area. 

The StreetSelect Grievance Board determined that the claim is compensable only for a lumbar 

sprain/strain in its March 1, 2016, decision. Ms. Rhodes had reached maximum medical 

improvement and was released to return to work. The Board found that the addition of L4-5 

degenerative spondylosis and lumbar spinal stenosis to the claim was properly denied as there 

was no evidence presented to show that the compensable injury presented a discreet new injury 

requiring surgery. It therefore recommended the denial of the addition of the requested 

conditions and the surgery to treat them. 

The claims administrator closed the claim for temporary total disability benefits on 

August 11, 2015. The claims administrator denied an L4-5 decompression and posterior fusion 

surgery and the addition of L4-5 degenerative spondylolisthesis and lumbar spinal stenosis to the 

claim on March 3, 2016. The Office of Judges affirmed the decisions in its January 10, 2017, 

Order. It found that Ms. Rhodes injured her back while at work. Diagnostic studies showed 

significant arthritic changes in the lumbar spine as well as stenosis, arthropathy, disc spurring, 

and disc bulges. Dr. Jin determined that Ms. Rhodes may require cervical decompression for the 

stenosis, but it was not causally related to the compensable injury. Dr. Thaxton also found that 

the surgery was related to the preexisting degenerative changes and not the compensable lumbar 

sprain. The Office of Judges found that the claim is compensable for a lumbar sprain/strain but 

did not find sufficient evidence to provide a connection between the compensable injury and the 

significant degenerative changes seen in the lumbar spine. The addition of the degenerative 

conditions to the claim were therefore properly denied. Surgery to treat the noncompensable 

degenerative changes was also properly denied. The Office of Judges also found no evidence that 

Ms. Rhodes was entitled to additional temporary total disability benefits. The Board of Review 

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

Order on May 19, 2017. 

On appeal before this Court, Ms. Rhodes argues that the Office of Judges failed to 

consider the request to add spinal stenosis to the claim. She asserts that she had no history of 

radicular symptoms prior to the compensable injury. The medical evidence shows no diagnosis 

of stenosis prior to the compensable injury and the radicular symptoms did not occur until the 

compensable injury. She further argues that the spinal stenosis resulted in a separate spinal injury 

which should be held compensable per this Court’s decision in Gill v. City of Charleston, 236 

W.Va. 737, 783 S.E.2d 857 (2016). Reynolds Memorial Hospital argues that Ms. Rhodes failed 

to establish that she developed L4-5 spondylolisthesis and lumbar spinal stenosis as a result of 

the compensable injury. It asserts that Gill does not apply here because no discreet new injury 

has occurred. Ms. Rhodes’s symptoms are a continuation of her preexisting conditions. Finally, it 

argues that spondylolisthesis is listed as a comorbidity that cannot be considered a compensable 

condition under West Virginia Code of State Rules § 85-20-37.8 (2006). 

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

affirmed by the Board of Review. The evidence indicates that Ms. Rhodes has significant 

degeneration in her spine. Spinal stenosis and other degenerative changes were seen on an MRI 

taken three months after the compensable injury occurred. Drs. Jin and Thaxton both concluded 

that L4-5 degenerative spondylolisthesis and lumbar spinal stenosis should not be added to the 

claim as they were not the result of the compensable injury. Their opinions are reliable and 

supported by the evidentiary record. This Court’s decision in Gill does not apply in this case as 

Ms. Rhodes did not suffer a discrete new injury. 

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: December 19, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

DISSENTING: 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker, disqualified. 

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