VP Management, LLC v. Devorea Scarbro

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

VP MANAGEMENT, LLC, FILED
Employer Below, Petitioner
June 6, 2025
v.) No. 24-ICA-423 (JCN: 2020011707) ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
DEVOREA SCARBRO,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner VP Management, LLC, (“VP”) appeals the September 13, 2024, order of
the Workers’ Compensation Board of Review (“Board”). Respondent Devorea Scarbro
filed a timely response.1 VP did not file a reply. The issue on appeal is whether the Board
erred in reversing the claim administrator’s orders and 1) granting the claimant’s request
to add radiculopathy lumbar region (L4-L5 radiculitis) and radiculopathy lumbosacral
region as compensable conditions in the claim; 2) finding Ms. Scarbro is entitled to
temporary total disability (“TTD”) benefits from the time TTD was last paid through
October 25, 2020, and thereafter as supported by proper medical evidence; 3) authorizing
lumbar epidural injections; and 4) authorizing an EMG/NCS of the lower extremities and
a referral to Rajesh V. Patel, M.D.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Ms. Scarbro suffered a workplace injury on October 23, 2019, while she was
tugging on a tangled load of laundry to retrieve it from a washing machine when the load
suddenly broke free. On October 28, 2019, Ms. Scarbro sought treatment at the Plateau
Medical Center emergency department where she saw Todd A. Lares, M.D. Ms. Scarbro
reported pain in her shoulder, the right side of her back, and her right wrist as a result of
the injury. Dr. Lares further indicated that Ms. Scarbro was unable to perform her regular
job duties due to back pain that caused her problems in standing. A lumbar spine CT
obtained at the visit showed disk bulging with spinal canal stenoses from L3-L4 to L5-S1,
with bilateral foraminal stenoses at L3-L4 and L4-L5. Dr. Lares and Ms. Scarbro
completed an Employees’ and Physicians’ Report of Occupational Injury or Disease form

1
Ms. Scarbro is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
VP is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq.

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at the visit. On the form, Ms. Scarbro reported injuries to her low back, right wrist, and
right shoulder as a result of the workplace incident. Dr. Lares listed the diagnoses as sprain
of the right carpal joint of the right wrist, intravertebral disc disorders with radiculopathy
of the lumbar region, sprain of unspecified parts of the right shoulder girdle, and sprain of
the ligaments of the lumbar spine as the result of an occupational injury. Further, Dr. Lares
indicated that the injury aggravated preexisting degenerative changes in the lumbar spine.

On November 4, 2019, Ms. Scarbro saw Richard Spencer, M.D., her primary care
physician, who completed a second report of injury form, which Ms. Scarbro signed on
October 31, 2019. Ms. Scarbro again explained that she was injured while unloading
tangled items from a washer. Ms. Scarbro further indicated that she had braced herself with
her foot on the washer and pulled hard; when the laundry gave way, she hit her arm on the
washer and twisted her back. After diagnosing injuries to Ms. Scarbro’s low back, right
shoulder, and right wrist, Dr. Spencer referred Ms. Scarbro to an orthopedic and spinal
surgery clinic. By order dated November 15, 2019, the claim administrator held the claim
compensable for sprains/strains of the lumbar spine, right wrist, and right shoulder.

With the background of the injury in the claim being described, this Court now notes
the evidence of Ms. Scarbro’s prior history of low back injuries, treatment, and diagnoses.
On May 1, 2000, Ms. Scarbro was treated at an emergency room after the car in which she
was sitting was struck by another vehicle. Ms. Scarbro complained of right foot numbness
and tingling and was diagnosed with a mild to moderate low back strain and shoulder strain.
An x-ray performed on September 1, 2000, revealed sacroiliac arthrosis, bilaterally, facet
arthrosis, a possible annular derangement of the L3 disc, and mild spondylosis with disc
narrowing at L4 and L5. From March 15, 2013, through March 31, 2017, Autumn Feazell,
FNP-BC, treated Ms. Scarbro for complaints related to her low back, right leg, and hip.
The following diagnoses were made by FNP-BC Feazell at these visits: sciatica, chronic
low back pain, idiopathic peripheral neuropathy, right sided body weakness, and myalgias.
On May 12, 2016, FNP-BC Feazell noted that a pain clinic prescribed Ms. Scarbro opioid
pain medications to treat her chronic neck and back pain.

Another report that documents Ms. Scarbro’s prior medical history is that of
Mustafa Rahim, M.D., dated January 8, 2015. Dr. Rahim examined Ms. Scarbro regarding
her back pain stemming from her November of 2014 injury when Ms. Scarbro fell down
stairs. Ms. Scarbro noted that opioid pain medication alleviated the shooting pain that went
from her hip to her right lower extremity. Dr. Rahim referred Ms. Scarbro to John R.
Orphanos, M.D., who examined her on March 12, 2015. Ms. Scarbro told Dr. Orphanos
that she had intermittent right leg pain radiating into her thigh and she noted some
improvement since the injury. Pain management was recommended at the visit. On October
11, 2016, Paul Bachwitt, M.D., examined Ms. Scarbro for an Independent Medical
Evaluation (“IME”) related to a workplace injury that occurred in November of 2014, when
she fell down stairs. In his report dated October 12, 2016, Dr. Bachwitt noted that Ms.
Scarbro reported numbness in her right leg of unknown etiology that began prior to

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November 2014. Dr. Bachwitt also noted that Ms. Scarbro was treated about every week
through December of 2014 by a physician who prescribed pain medications. Dr. Bachwitt
did not find any abnormalities to explain her ongoing symptoms and her inability to stand
for long periods at work. According to Dr. Bachwitt, an FCE placed her in the sedentary
physical demand level and recommended that she stand/sit with posture changes as needed.
Dr. Bachwitt observed that Ms. Scarbro walked with a moderate left limp. Ms. Scarbro told
Dr. Bachwitt that she returned to work on August 2, 2016, for a different employer,
performing light duty administrative/supervisory work that also involved walking, but no
lifting, pushing, or pulling. He also noted that previously, she had been awarded Social
Security Disability benefits. Dr. Bachwitt assessed 5% whole person impairment (“WPI”)
related to Ms. Scarbro’s lumbar spine injury.

On March 31, 2017, Ms. Scarbro discussed some paperwork with FNP-BC Feazell,
whose report on that date does not contain any medical findings. Thus, after Dr. Bachwitt’s
2016 report, a gap exists in treatment notes until October of 2019 when Ms. Scarbro
received treatment for the work injury in the subject claim.

Regarding Ms. Scarbro’s treatment for the compensable injury in this case, Rajesh
V. Patel, M.D., an orthopedic spine surgeon, began treating Ms. Scarbro on December 11,
2019, for complaints about her low back and legs that had been ongoing since October of
2019. According to Dr. Patel, lumbar spine x-rays revealed degenerative changes and a
lumbar CT from October 2019 showed stenosis at L3-L4 and L4-L5, lateral recess
narrowing at L5-S1, and facet arthropathy from L3 through S1. Dr. Patel assessed a lumbar
sprain, bilateral SI joint sprain, rule out lumbar disc herniation, bilateral L5 radiculitis, and
lumbar stenosis. Other than noting degenerative changes in Ms. Scarbro’s spine, Dr. Patel
did not mention Ms. Scarbro’s prior medical history regarding her lumbar spine. Dr. Patel
requested a lumbar MRI to evaluate for a disc herniation. On February 17, 2020, Dr. Patel
completed a Diagnosis Update requesting that the additional diagnoses of radiculopathy of
the lumbar region and radiculopathy of the lumbosacral region be added as compensable
conditions in the claim; Dr. Patel also noted bilateral sacroiliac sprain and L5-S1 radiculitis,
right greater than the left.

Rebecca Thaxton, M.D., authored a Physician Review report dated March 23, 2020,
addressing Dr. Patel’s Diagnosis Update. Dr. Thaxton opined that Ms. Scarbro’s symptoms
were related to preexisting lumbar degenerative disease, although she felt that treatment
could be authorized if the work injury caused symptoms to flare. On April 29, 2020, the
StreetSelect Grievance Board issued a determination that agreed with Dr. Thaxton, and
recommended Dr. Patel’s Diagnosis Update be denied. By order dated April 29, 2020, the
claim administrator denied Dr. Patel’s request to add radiculopathy, lumbar region (L4-L5
radiculitis), and radiculopathy, lumbosacral region to the claim. Ms. Scarbro protested this
order to the Office of Judges.

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On June 26, 2020, Francis M. Saldanha, M.D., performed lumbar epidural injections
which were authorized by the claim administrator. Dr. Saldanha listed diagnosis codes
representing radiculopathy of the lumbar region, and other intervertebral disc displacement
of the lumbar region. Dr. Saldanha noted that Ms. Scarbro only received temporary relief
from previous facet injections. Dr. Saldanha performed additional injections through
September 16, 2020, when he diagnosed lumbar strain, lumbar radiculitis, and lumbar facet
syndrome, and recommended two more lumbar epidural injections over the next six
months.

On August 19, 2020, Prasadarao B. Mukkamala, M.D., performed an IME of Ms.
Scarbro for the workers’ compensation claim. Dr. Mukkamala noted that Ms. Scarbro had
a prior back injury and preexisting lumbar spondyloarthropathy. Ms. Scarbro told Dr.
Mukkamala that at the time she was injured, she had worked for the employer “on and off
for 15 months.” Dr. Mukkamala determined that the injections Ms. Scarbro was given were
unrelated to the work injury, but were instead used to address preexisting, noncompensable
conditions. When addressing whether the work injury aggravated a preexisting condition,
Dr. Mukkamala stated that “[t]here was no evidence that the injury of 10/24/2019
aggravated the preexisting conditions, but most certainly, it exacerbated the preexisting
conditions.” Although Ms. Scarbro was not working at the time, Dr. Mukkamala
determined that she was capable of working at a light physical demand level. Further, Dr.
Mukkamala noted that the diminution in sensation in Ms. Scarbro’s right lower extremity
was in a nonanatomical pattern. After determining that Ms. Scarbro was at maximum
medical improvement for her work injury, Dr. Mukkamala rated her at 8% WPI, but
apportioned 4% to preexisting, degenerative conditions; further, Dr. Mukkamala also
found that Ms. Scarbro had been fully compensated by a previous 8% award granted in a
prior workers’ compensation claim for her low back.

On October 5, 2020, Randall Short, D.O., performed a Physician Review in which
he addressed whether two lumbar epidural steroid injections should be authorized. Dr.
Short observed that Dr. Mukkamala felt that the injections and pain management were
unrelated to the compensable injury but were directed at treating preexisting,
noncompensable conditions. Concurring with Dr. Mukkamala, Dr. Short determined that
Ms. Scarbro had evidence of significant, preexisting, degenerative lumbar disease and he
did not recommend authorization of the injections.

By order dated October 22, 2020, the claim administrator closed Ms. Scarbro’s
claim for TTD benefits on the basis that it had not received additional information from
her in response to a notice issued on September 18, 2020. Ms. Scarbro protested this order
to the Office of Judges.

On October 22, 2020, Dr. Spencer requested a follow up with Dr. Saldanha for
additional epidural injections, a follow up with Dr. Patel, and an EMG/NCS of the lower
extremities to compare with a previous study performed in 2014. In a separate letter dated

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October 25, 2020, Dr. Spencer reviewed the history of Ms. Scarbro’s treatment following
her injury in October of 2019. Dr. Spencer suggested that it may have been premature to
deem Ms. Scarbro at MMI, reasoning that Dr. Patel, her spine surgeon, had not performed
a final evaluation, and there were some other potential treatment options. Dr. Spencer
mentioned that an MRI had shown a partial tear in Ms. Scarbro’s shoulder. Thus, Dr.
Spencer determined that Ms. Scarbro remained temporarily and totally disabled due to her
compensable injury.

On November 4, 2020, the claim administrator affirmed its denial of lumbar
epidural injections based on the Encova Select Grievance Board Determination dated
November 4, 2020. The Encova Select Grievance Board recommended the injections be
denied and noted that Dr. Mukkamala placed Ms. Scarbro at MMI in August of 2020, and
that Dr. Short recommended that the injections be denied. Ms. Scarbro protested this order
to the Office of Judges.

On November 5, 2020, James M. Dauphin, M.D., authored a Physician Review
addressing whether an EMG/NCS of the lower extremities and a follow-up with Dr. Patel
should be authorized. Dr. Dauphin agreed with the opinions of Drs. Mukkamala and Short
regarding epidural steroid injections. Dr. Dauphin suggested that the same rationale applied
to the EMG/NCS request, i.e., that degenerative changes were causing Ms. Scarbro’s
symptoms. Thus, he recommended that the EMG/NCS and follow up visits be denied. On
December 14, 2020, Dr. Spencer conducted a telephonic visit with Ms. Scarbro regarding
complaints that she was unable to stand for more than ten to fifteen minutes, her right wrist
pain was worse, and she had a recent onset of severe right knee and ankle pain. Dr. Spencer
assessed lumbago with sciatica and radiculopathy.

On December 16, 2020, the Encova Select Grievance Board issued its
Determination that Ms. Scarbro’s requests for an EMG/NCS of the lower extremities and
a follow-up with Dr. Patel should be denied. The Board noted that Dr. Mukkamala placed
Ms. Scarbro at MMI and found that she did not require additional treatment. The Board
also referenced and agreed with the medical reviews by Drs. Short and Dauphin. Thus, the
Board determined that EMG/NCS of the lower extremities and the referral to Dr. Patel
should be denied. Based on the Board’s recommendation, by order dated December 16,
2020, the claim administrator denied the EMG/NCS and referral to Dr. Patel. Ms. Scarbro
protested this order to the Office of Judges.

During telephonic visits with Dr. Spencer in December 2020 and February 2021,
Ms. Scarbro explained that she was unable to stand longer than ten or fifteen minutes, and
in December she experienced a recent sudden onset of severe right knee pain. At the
February visit, Ms. Scarbro told Dr. Spencer that she fell several times during a Social
Security Disability exam. Dr. Spencer’s diagnoses included lumbago with sciatica on the
right, and lumbar radiculopathy. Dr. Spencer authored a letter dated February 17, 2021, in

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which he wrote that Ms. Scarbro remained unable to be gainfully employed from February
12, 2021, and for the next six months due to her “multiple disabilities.”

On September 30, 2021, the Office of Judges issued an order affirming all four claim
administrator’s orders that Ms. Scarbro protested. Finding that Ms. Scarbro has a
significant medical history of low back complaints, preexisting radiculitis, and/or
radiculopathy, the Office of Judges affirmed the claim administrator’s denial of Dr. Patel’s
Diagnosis Update request. Then, finding that the requests for an EMG/NCS of the lower
extremities, referral to Dr. Patel, and lumbar epidural injections were related to preexisting
conditions rather than the compensable lumbar sprain, the Office of Judges also affirmed
the orders that denied those requests. Regarding the TTD closure, the Office of Judges
relied on Dr. Mukkamala’s opinion that Ms. Scarbro had reached MMI, and found that the
claim was properly closed for TTD benefits. The Office of Judges found that it was
reasonable to conclude that all reasonable and necessary treatment to address the
compensable diagnoses had been exhausted. The Office of Judges rejected Dr. Spencer’s
opinion that some treatment options remained and that Ms. Scarbro was not at MMI. In
particular, the Office of Judges observed that the partial tear in Ms. Scarbro’s shoulder,
mentioned in Dr. Spencer’s letter of October 25, 2020, was not compensable in the claim.

Ms. Scarbro appealed the Office of Judges’ decision to the Board. On March 21,
2022, the Board affirmed the Office of Judges’ decision. Ms. Scarbro then appealed the
Board’s order to the Supreme Court of Appeals of West Virginia. In Scarbro v. VP Mgmt.,
LLC, No. 22-0259, 2024 WL 340594 (W. Va. Jan. 25, 2024) (memorandum decision), the
Court ruled that there was a “material misstatement of the evidentiary record regarding the
impact the instant compensable injury had on petitioner's preexisting conditions.” Id. at *5.
The Court noted that the Office of Judges relied on Dr. Mukkamala’s findings to determine
that Ms. Scarbro was at MMI and that she was only receiving treatment for
noncompensable conditions. However, the Court labeled the following statement by Dr.
Mukkamala to be both “equivocal” and “confusing:” “[t]here was no evidence that the
injury of 10/24/2019 aggravated the preexisting conditions, but most certainly,
it exacerbated the preexisting conditions.” Id. at *3 and 5.

Importantly, the Court determined that “prior to the instant compensable injury,
[Ms. Scarbro] did not have symptoms which prevented her from performing all of her job
duties,” but after the injury, Dr. Mukkamala advised that Ms. Scarbro was limited to lifting
no more than twenty-five pounds on an occasional basis. Id. at *5. Based on her post-injury
physical limitations, the Court determined that Ms. Scarbro raised a “possible natural
inference of causation” regarding her medical issues. Thus, the Court remanded the case to
the Board for further review pursuant to the Court’s ruling in Moore v. ICG Tygart Valley,
LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022), which held that “a claimant has the burden
of proving that the compensable injury exacerbated, accelerated, or worsened the
preexisting condition or disease causing a new distinct injury.” Id. at 301, 879 S.E.2d at
788 (citing Syl. Pt. 3, Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016)).

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On remand, Ms. Scarbro’s appeal of the four claim administrator’s orders was again
considered – this time, in light of the Court’s ruling in Scarbro.2 As the Court directed, the
Board performed an analysis of the claim under Gill and Moore, specifically addressing
the rebuttable presumption established in Syllabus Point 5 of Moore, under which a
claimant’s disability may be presumed to have resulted from the compensable injury, if the
pre-existing condition was previously asymptomatic, and after the coempensable injury,
the claimant manifested symptoms continuously. Ultimately, the Board reversed all four
claim administrator’s orders and held that radiculopathy of the lumbar region (L4-L5
radiculitis) and radiculopathy of the lumbosacral region were compensable, closure of the
claim for TTD benefits was premature, and that epidural steroid injections, an EMG/NCS,
and a referral to Dr. Patel were medically necessary and reasonably required treatment for
the compensable injury. VP now appeals the Board’s order.

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.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, VP argues that the Board committed reversible error in holding that Ms.
Scarbro is entitled to workers’ compensation benefits for lumbar radiculopathy, additional

2
The OOJ and BOR were reorganized effective October 1, 2022, when the OOJ was
terminated and, as of July 1, 2022, the BOR was reconstituted and authorized to assume
the duties of the OOJ; further, the Intermediate Court of Appeals was given jurisdiction to
review final orders issued by the Board after June 30, 2022. See W. Va. Code §§ 23-5-8a
and -8b (2022).

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TTD benefits, and additional treatment in the claim. VP asserts that the evidence shows
that radiculopathy is not only unconfirmed, but is preexisting, and any further period of
disability and treatment is unrelated to the compensable injury. Further, VP claims that the
Board misapplied the standard of review and drew inferences that are not supported by the
record, resulting in a decision that is clearly wrong.

The main thrust of VP’s assertions is that Ms. Scarbro has suffered from pain
radiating into her right lower extremity since 2013, she has a history of idiopathic
peripheral neuropathy, and the symptoms are preexisting and chronic. Further, VP
contends that there is no indication that Dr. Patel was aware of Ms. Scarbro’s preexisting
condition. VP also disputes whether “radiculopathy” is an accurate diagnosis in this case,
arguing that the 2019 lumbar MRI failed to reveal any findings that would result in acute
radiculopathy as the only finding at L5-S1 was hypertrophic facet disease and disc bulges
that had been present since 2015. Thus, VP contends that the 2019 MRI demonstrates that
Ms. Scarbro’s preexisting degenerative disc bulges progressed into stenoses, but that there
is no explanation given as to how the compensable injury resulted in the alleged
radiculopathy.

Regarding the Board’s analysis under Moore and Gill, VP argues that the Board
incorrectly found that Ms. Scarbro did not have prior symptoms that prevented her from
performing her job duties. VP also argues that the Board committed error by finding that
the lack of prior symptoms supported a “natural inference of causation” that lumbar
radiculopathy is compensable. Instead, VP points to evidence of preexisting disease, a
pattern of periodic flare-ups and complaints related to radiation into the lower extremities,
and even evidence that Ms. Scarbro was granted Social Security Disability benefits for her
low back, suggesting that her conditions previously interfered with her ability to work at
some point. Also, VP notes that Ms. Scarbro reported that she had been working “on and
off” for the employer. Thus, VP asserts that the Board’s finding that Ms. Scarbro’s
preexisting issues did not prevent her from working misrepresents the true extent of her
medical history. VP also points to Dr. Spencer’s records as evidence that Ms. Scarbro’s
inability to work is related to a multitude of other health conditions and circumstances.

VP also asserts that the employer rebutted any presumption of compensability as
Drs. Thaxton and Mukkamala found that the compensable injury was limited to a lumbar
sprain/strain and Dr. Mukkamala established that Ms. Scarbro’s diminished sensation was
in a nonanatomical pattern. Further, Dr. Thaxton, VP pointed out, found that the MRI did
not support a diagnosis of lumbar radiculopathy, and Ms. Scarbro failed to explain how the
injury resulted in lumbar radiculopathy in light of her preexisting issues and lack of an
acute disc herniation.

Finally, VP argues that Ms. Scarbro had reached MMI from the compensable
sprain/strain and is no longer eligible for TTD benefits. VP also contends that ongoing
treatment efforts are aimed at addressing Ms. Scarbro’s preexisting right sciatica and other

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health conditions such as a new onset of right knee pain in December 2020, chronic neck
pain, and other noncompensable issues.

We disagree. In Scarbro, the Supreme Court addressed many of the issues VP now
raises. In its order, the Board relied heavily on language used by the Scarbro Court. For
instance, the Board noted that the Court determined that prior to the compensable injury,
Ms. Scarbro did not have symptoms that prevented her from performing all of her job duties
and that the medical evidence raises a “possible natural inference of causation as to [her]
medical issues.” While the Board observed that in 2016, Dr. Bachwitt found that Ms.
Scarbro had pain and numbness in her right leg that began prior to 2014, of unknown
etiology, the Board also observed a gap in medical records addressing Ms. Scarbro’s low
back after Dr. Bachwitt’s 2016 examination until October 2019. On October 28, 2019, Ms.
Scarbro was diagnosed with lumbar radiculopathy as a result of the occupational injury in
the present claim. The Board found that “[f]ollowing the compensable injury, the
symptoms of lumbar/lumbosacral radiculopathy appeared and continuously manifested
themselves afterwards” and that the “compensable injury exacerbated the preexisting
condition causing a new distinct injury.” Thus, the Board held that in light of the Gill and
Moore cases, a causal relationship existed between the compensable injury and
lumbar/lumbosacral radiculopathy. The Board also noted the Scarbro Court’s finding that
Dr. Mukkamala’s statements in his report were confusing.

Upon review, it does not appear that radiculopathy was diagnosed prior to the injury
in this claim. Further, as the Board noted, there are no medical records that address Ms.
Scarbro’s low back condition after Dr. Bachwitt examined her in October of 2016, and
before October 28, 2019. The Scarbro Court stated that Ms. Scarbro did not have symptoms
that prevented her from performing all of her job duties prior to the compensable injury,
and the Court indicated significant concerns about the reliability of Dr. Mukkamala’s
report. In fact, the Court expressed three areas of concern it had about Dr. Mukkamala’s
report: 1) his confusing statement that “[t]here was no evidence that the injury …
aggravated the preexisting conditions, but most certainly, it exacerbated the preexisting
conditions”; 2) his finding that Ms. Scarbro was at MMI; and 3) his finding that Ms.
Scarbro could not resume her job without specific limits on her abilities to lift, when she
had no limitations prior to the injury.

Thus, we cannot find that the Board erred in determining that the compensable
injury exacerbated a preexisting condition and caused a new distinct injury of
lumbar/lumbosacral radiculopathy. Nor do we find that the Board erred when it determined
that the claim was closed for TTD benefits prematurely since Dr. Spencer reported on
October 25, 2020, that Ms. Scarbro remained temporarily and totally disabled from the
compensable injury. Pursuant to West Virginia Code § 23-4-7a (2005), TTD benefits are
not available once a claimant reaches MMI, returns to work, or is released to return to
work. This standard is not met in this case.

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Further, the claim administrator must provide medically related and reasonably
necessary treatment for compensable injury. See West Virginia Code § 23-4-3 (2005) and
West Virginia Code of State Rules § 85-20 (2006). We cannot find that, after the addition
of lumbar/lumbosacral radiculopathy to the claim, the Board erred in finding that the
epidural steroid injections, an EMG/NCS study of the lower extremities, and a referral to
Dr. Patel should be authorized as they are medically necessary and reasonably required to
treat the compensable injury.

Finally, our review is deferential to the Board. “[U]nless the evidence compels a
contrary finding, the Board's reliance on certain medical reports and opinions over others
is entitled to considerable deference.” Delsignore v. Timberline Logging Enterprises, LLC,
No. 23-636, 2025 WL 1276870, at *3 (W. Va. May 2, 2025) (memorandum decision)
(citing Arch Coal, Inc. v. Howard, No. 23-391, 2025 WL 1122258, at *3 (W. Va. Apr. 16,
2025). With this deferential standard of review in mind, we cannot conclude that the Board
was clearly wrong.

Accordingly, we affirm the Board’s September 13, 2024, order.

Affirmed.

ISSUED: June 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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