STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS 

FILED 

JENNIFER JOHNS, February 3, 2017 

Claimant Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0187 (BOR Appeal No. 2050535) 

(Claim No. 2014008533) 

THOMAS HEALTH SYSTEMS, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Jennifer Johns, by Patrick K. Maroney, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Thomas Health Systems, Inc., by 

Timothy E. Huffman, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in 

which the Board affirmed a May 19, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 13, 2014, 

decision which closed the claim for temporary total disability benefits. 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. Johns, a certified nursing assistant, was injured in the course of her employment on 

September 15, 2013, when a patient fell on her neck. The record indicates the claim was held 

compensable for cervical sprain/strain. The employees and physician’s report of injury indicates 

Ms. Johns suffered a neck sprain after a patient fell on her. Treatment notes from Saint Francis 

Hospital emergency room indicate Ms. Johns was diagnosed with a neck sprain. A cervical CT 

scan showed degenerative changes. 

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Ms. Johns has a long history of cervical spine problems. August 30, 2011, treatment notes 

from Boone Memorial Hospital emergency room indicate she was seen for ongoing neck pain for 

eight months that had worsened in the last week. She reported numbness, redness, and burning in 

her hands. On September 9, 2011, she sought treatment at Boone Memorial RHC for neck pain 

and chronic back pain. She was diagnosed with cervicalgia. September 14, 2011, treatment notes 

from MedExpress indicate Ms. Johns was treated for pain in the neck and arm that radiated into 

the left shoulder. She reported a lifting injury involving her neck. She was diagnosed with neck 

pain. She sought treatment that same day from Boone Memorial Hospital emergency room where 

she was assessed with a cervical sprain. 

On September 19, 2011, Ms. Johns was treated at Boone Memorial Hospital Medical 

Clinic for a lifting injury involving her neck. She stated that she was lifting a patient and had 

sudden pain in her neck. She was diagnosed with cervical strain. She was treated with physical 

therapy and medication. On October 5, 2011, she reported that her neck pain had increased. 

Moving her neck caused numbness and pain. She was diagnosed with neck pain secondary to 

cervical strain with possible nerve impingement or encroachment. On October 17, 2011, an MRI 

showed bulging discs at C3-4, C5-6, and C6-7. Finally, on September 10, 2013, five days before 

the compensable injury in this claim, Ms. Johns was treated at MedExpress for fever, cough, 

congestion, pain, and neck pain. It was noted that she had a bulging disc in her neck for three 

years and chronic neck pain. She was diagnosed with neck sprain and respiratory infection. 

Ms. Johns underwent treatment at Charleston Physical Therapy Solutions from 

September 25, 2013, through October 24, 2013, for the compensable injury in this claim. The 

notes indicate she presented with decreased and painful cervical range of motion. The symptoms 

suggested a displacement within the cervical spine referring symptoms to the left shoulder. Ms. 

Johns completed six physical therapy visits and reported that she was pain free with full function 

at the last visit. 

Ms. Johns regularly sought treatment at MedExpress. A note dated October 13, 2013, 

indicates she was seen for pain in her neck and numbness and weakness in her extremities. The 

note indicates this was an exacerbation of a chronic issue. On November 12, 2013, she was seen 

for pain in her neck and back that radiated to her left leg. She reported an old injury in which she 

fractured vertebrae of the cervical spine. She stated that her pain was not severe. She was 

assessed with lumbar sprain/strain, neck sprain/strain, radiculopathy of the arm, paresthesia, and 

radiculopathy of the leg. On December 4, 2013, Ms. Johns was treated for neck pain. She was 

diagnosed with neck sprain and instructed to return to work with no restrictions. 

On January 5, 2014, Ms. Johns sought treatment at Saint Francis Hospital emergency 

room for ongoing neck pain. She noted that she turned her head to the right at work that day and 

her neck just popped. X-rays of the cervical spine showed mild degenerative changes, more 

prominent at C5-6, with posterior osteophyte formation. She was diagnosed with neck sprain. On 

January 9, 2014, Ms. Johns was treated at MedExpress where she was diagnosed with 

radiculopathy and released to return to work on modified duty on January 10, 2014. 

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An application for temporary total disability benefits was submitted on January 14, 2014, 

indicating Ms. Johns was temporarily and totally disabled from January 9, 2014, through March 

9, 2014, due to cervical radiculopathy. It was also indicated that she needed a neurosurgical 

referral and a cervical MRI. A January 16, 2014, cervical MRI revealed mild degenerative 

changes, osteophyte disc complex at C2-3, a small paracentral disc protrusion at C5-6, and a 

small annular tear at C6-7. 

Ms. Johns was next treated at Hope Clinic. Notes indicate she still had severe neck pain 

on March 17, 2014. The assessment was C5-6 herniated disc with annular tear and spinal 

stenosis. She was referred to neurology. On April 10, 2014, a return to work report from 

MedExpress indicates Ms. Johns was placed on modified duty as of April 10, 2014. Her 

diagnoses were listed as radiculopathy, neck pain, and cervical disc displacement. On April 14, 

2014, Ms. Johns stated in a treatment note by Hope Clinic that her medications still were not 

working. The assessment was degenerative disc disease, osteoarthritis, whiplash, and neck pain. 

An authorization request was submitted by Hope Clinic for a referral to a neurosurgeon for 

ongoing medical problems related to the September 15, 2013, work injury. A final request was 

made by David Ferrell, M.D., from MedExpress, on April 29, 2014, for a neurosurgical 

consultation based on Ms. Johns’s symptoms and MRI. 

Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Ms. 

Johns on June 12, 2014. Dr. Mukkamala noted in his evaluation that the compensable condition 

was neck sprain. His diagnosis was cervical sprain and he found that Ms. Johns was at maximum 

medical improvement. He opined that she required no further treatment for the compensable 

injury and assessed 8% whole person impairment. 

A final independent medical evaluation was performed by Paul Bachwitt, M.D., on 

December 18, 2014. Dr. Bachwitt noted the compensable condition of cervical sprain/strain, 

specifically referring to a September 20, 2013, Order of the claims administrator. Dr. Bachwitt 

opined the case was properly closed for temporary total disability benefits. He noted that most of 

Ms. Johns’s symptoms were related to old arthritic changes and a motor vehicle accident she was 

in at age nineteen. He opined that her simple cervical sprain was superimposed on pre-existing 

degenerative changes which should have resolved within two to three months. He further opined 

that it was appropriate to deny the request for a pain clinic and neurosurgical referral. He found 

that she had no particular areas of tenderness or findings that could be treated by a pain clinic nor 

did she have any clinical findings of an operative disc lesion that would need neurosurgical 

treatment. He assessed 8% impairment. 

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

August 13, 2014. The Office of Judges affirmed the decision in its May 19, 2015, Order. It found 

that Ms. Johns did not establish by a preponderance of the evidence that the claim was 

improperly closed for temporary total disability benefits. The Office of Judges found that the 

claims administrator stated in its August 13, 2014, decision that the claim was closed as Ms. 

Johns had not presented evidence showing that she continued to be totally disabled. However, 

per a second claims administrator decision dated August 13, 2014, she was granted an 8% 

permanent partial disability award. Thus, the Office of Judges concluded the claim was closed 

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for temporary total disability because she had reached maximum medical improvement for the 

compensable injury. 

The Office of Judges noted that no Orders or decisions were submitted regarding the 

compensable injury in the claim. However, per the reports of Drs. Mukkamala and Bachwitt, the 

compensable condition is a cervical sprain. Dr. Bachwitt in particular, specifically referenced a 

September 20, 2013, claims administrator decision which held the claim compensable for 

cervical sprain/strain. Based upon the evidence, the Office of Judges found that the claim was 

appropriately closed for temporary total disability benefits. Ms. Johns had reached maximum 

medical improvement as determined by both Drs. Mukkamala and Bachwitt in their independent 

medical investigations. Further, their opinions were supported by West Virginia Code of State 

Rules § 85-20-35.5 (2006), which states that cervical sprain/strains are expected to resolve 

within eight weeks. 

Furthermore, the Office of Judges determined that if Ms. Johns is unable to return to 

work or is not at maximum medical improvement, it is because of conditions which are not 

compensable. The Office of Judges found that per the April 14, 2014, MedExpress report, that 

Ms. Johns’s job restrictions were due to radiculopathy, neck pain, and cervical disc 

displacement, none of which are compensable conditions. In the April 29, 2014, MedExpress 

report, Dr. Ferrell requested a neurosurgery consultation based on her symptoms and MRI. The 

only post-injury MRI was performed on January 16, 2014, and revealed mild degenerative 

changes, osteophyte disc complex at C2-3, a small disc protrusion at C5-6, and a small annulus 

tear at C6-7. The Office of Judges lastly determined that Ms. Johns requested a reopening of her 

claim based upon the diagnosis of cervical radiculopathy. The Board of Review adopted the 

findings of fact and conclusions of law of the Office of Judges and affirmed its Order on 

February 3, 2016. 

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

Board of Review. Ms. Johns has requested temporary total disability benefits for conditions that 

have not been held compensable in this claim. She had serious pre-existing degenerative changes 

and cervical spine conditions that are not related to the compensable injury. She sustained a 

simple cervical sprain/strain as a result of her compensable injury, which should have resolved 

long ago. 

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. 

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ISSUED: February 3, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Menis E. Ketchum 

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