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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

LYNESE DANFORD, Claimant Below, Petitioner

vs.) No. 16-1196 (BOR Appeal No. 2051370) (Claim No. 2014019237)

KANAWHA HOSPICE CARE, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Lynese Danford, by Edwin H. Pancak e, her attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. Kanawha Hospice Care, Inc., by H. Dill Battle III, its attorney, filed a timely response.

The issue on appeal is whether cubital tunne l syndrome and brachial plexus injury should

be added to the claim. The claims administrator denied the addition of the conditions on September 8, 2015. The Office of Judges affirmed the decisi on in its May 27, 2016, Order. The Order was affirmed by the Board of Review on November 21, 2016. The Court has carefully reviewed the records, written arguments, and appendices contai ned 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial e rror. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of A ppellate Procedure.

Ms. Danford, a registered nurse, was inju red in the course of her employment on November 13, 2013, while lifting an unconscious pati ent. A treatment note by Charles Shuff, M.D., the following day indicates Ms. Danford reported a new work-related injury to her neck. She indicated she lifted a patient, felt a pop in her nec k, and her entire right ar m went numb. Dr. Shuff’s impression was poly-dermatomal/atypical radicul opathy of the right extremity. A cervical x-ray showed stable findings. Ms. Danfor d’s report of injury indicates sh e injured her neck and right arm while transferring a patient. She felt a pop and pull in her neck and developed immediate numbness in her right arm. The diagnosis was listed as a cervical strain that did not a ggravate a prior injury 

### FILED

September 15, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 or disease. The claims admini strator held the claim compensa ble for neck sprain/strain on December 31, 2013.

Ms. Danford had a pre-existing history of cervical and right upper extremity problems. A March 13, 2013, treatment note by Dr. Shuff indicates she was seen for new onset of pain in the right side of the neck, right arm, right forearm, and fingers follow ing a car crash four weeks prior. The impression was degenerative disc disease of th e cervical spine with C7 radiculopathy. A pain assessment completed by Nurse Mary Beth Me rritt on April 18, 2013, indi cates Ms. Danford was evaluated for complaints of neck pain a nd right arm numbness a nd tingling. A May 16, 2013, medical report from St. Mary’s Medical Center i ndicates she received a cervical epidural steroid injection for neck pain with radiculopathy. On August 17, 2013, Ms. Danford underwent a cervical discectomy and fusion for neck pain, numbness, tingling, and paresthe sia of the right arm performed by Dr. Shuff. The post-operative dia gnosis was right-sided C6 and C7 radiculopathy secondary to cervical canal ste nosis and spondylosis. A November 6, 2013, treatment note by Dr. Shuff, one week prior to the compensable inju ry, indicates Ms. Danford was seen for follow up with complaints of new pain on the right side.

An EMG/NCS of the right upper extremity pe rformed on January 15, 2014, was essentially within normal limits. There was no evidence of carpa l tunnel syndrome, ulnar neuropathy, or radial sensory neuropathy. There was no evidence of righ t cervical radiculopathy or myopathy. A January 22, 2014, treatment note by Dr. Shuff indicates Ms. Danford was currently dealing with two problems. First, she had cervical spondylosis with radiculopathy status post-surgery. Second, she developed right arm and shoulder pa in after pulling on a patient at work. She continued to have numbness, tingling, and loss of strength in the ri ght arm. Dr. Shuff’s impression was C8 neuritis versus peripheral nerve based ulnar lesion/stretch. He recommended a C8 steroid injection for diagnosis and therapy. On March 26, 2014, Ms. Danf ord’s neck was doing well but she continued to have numbness, tingling, and paresthesia, particularly in the right pinky finger. She had difficulty with fine motor sk ills and repetitive activity.

Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 7, 2014, in which he noted diminished sensation ove r the right upper extrem ity in a global and nonanatomic pattern. Dr. Mukkamala diagnosed the wo rk injury as a cervical sprain. He found Ms. Danford had reached maximum medical improveme nt and assessed 6% whole person impairment.

In a May 14, 2014, treatment note, Alan Koeste r, M.D., found that Ms. Danford sustained a work-related traction injury to her right arm. He noted that Dr. Shuff did not believe her current problems were related to her pre-existing conditi ons. Ms. Danford reported persistent right arm and elbow pain with a tingling sensation into the fingers. Ther e was also tenderness around the brachial plexus. Dr. Koester’s impression was a likely double crush phenome non with right cubital tunnel syndrome and brachial ple xopathy. He did not believe the sy mptoms were related to the cervical spine.

Paul Bachwitt, M.D., performed an indepe ndent medical evaluati on on June 10, 2014, in which he opined that the medical documenta tion supports a causal relationship between the compensable injury and Ms. Danford’s cervical spine; however, he found no such connection3 between the compensable injury and the right arm/ elbow complaints. He specifically noted that seven days before the injury occurred, Dr. Shu ff diagnosed Ms. Danford w ith a new onset of C8 radiculopathy. Dr. Bachwitt opined that the mechan ism of injury, pulling on a patient, would not cause an injury to the ulnar nerve. In that regard, he noted that ul nar nerve injuries are usually the

result of a contusion or striki ng type injury to the elbow. Dr. Bachwitt diagnosed the compensable injury as a cervical strain.

In a June 23, 2014, physician review, Randall Short, M.D., was asked to comment on

whether cubital tunnel syndrome and brachial ple xopathy should be compensa ble diagnoses in the claim. Dr. Short found that according to Dr. Shuff’s November 6, 2013, treatment note, Ms. Danford’s right upper extremity symptoms predated the compensable injur y. Dr. Short additionally

noted that Dr. Bachwitt determined that her ri ght upper extremity symptoms are unrelated to the compensable injury. Dr. Short concluded that cubital tunnel syndrome a nd brachial plexopathy should not be added as compensa ble conditions in the claim.

A medical report by Dr. Shuff dated June 25, 2014, indicates Ms. Danford continued to have a brachial-plexus pattern of pain in the right arm. His assessment was resolved cervical radiculopathy and brachial plexus stretch inju ry with lower trunk abnormality. He additionally opined that Ms. Danford’s righ t arm symptoms are the result of her compensable injury.

The claims administrator denied the addition of cubital tunnel s yndrome and injury of brachial plexus to the claim on September 8, 2015. The Office of Judges affirmed the decision in its May 27, 2016, Order. It found th at Drs. Shuff and Koester bo th opined that Ms. Danford’s cubital tunnel syndrome and brachial plexus nerve injury were a result of her compensable injury. Their findings were determined by the Office of Judges to be inconsistent with the medical evidence of record. Dr. Shuff’s November 6, 2013, tr eatment note clearly states that Ms. Danford’s right upper extremity symptoms predated the comp ensable injury of November 13, 2013. He noted on November 6, 2013, that she was being evaluated for complaints of new pain following a C8 distribution on the right side. Physical examinat ion revealed light touc h discrepancy behind the right elbow into the forearm. Though Dr. Shuff ini tially diagnosed these sy mptoms as a new onset of C8 radiculopathy, they are the same symptoms which later led both Dr . Shuff and Dr. Koester to diagnose cubital tunnel syndrom e and brachial plexus injury. Th e Office of Judges further found that while there is evidence to suggest that Ms. Danford’s right upper extremity conditions were aggravated by the compensable in jury, a non-compensable pre-exis ting injury cannot be added as a compensable component of a claim merely because it may have been aggravated by a compensable injury. Gill v. City of Charleston , 236 W. Va. 737, 783 S.E.2d 857 (2016). The Office of Judges found that Drs. Bachwitt and Short conc luded that Ms. Danford’ s right arm symptoms predated the compensable injury. Additionally, Dr s. Bachwitt, Short, and Mukkamala all opined that the compensable injury resulted in nothing mo re than a cervical strain. Their opinions were

determined to be consistent with the medical evidence of record. The Board of Review adopted the findings of fact and conclusi ons of law of the Office of Judges and affirmed its Order on November 21, 2016.

After review, we agree with the reasoning an d conclusions of the Office of Judges as affirmed by the Board of Review. Ms. Danford’s ri ght upper extremity symptoms clearly predated4 the compensable injury as is evidenced by Dr. Shuff’s treatment notes. Though the conditions may have been aggravated by the compensable inju ry, the addition of cubital tunnel syndrome and brachial plexus nerve injury to the claim was properly denied.

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: September 15, 2017

CONCURRED IN BY: Chief Justice Allen H. Loughry II

Justice Robin J. Davis Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker