Irene Martin v. Wal-mart Associates, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
IRENE MARTIN, January 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-80 (BOR Appeal No.: 2057982)
(JCN: 2021007717)

WAL-MART ASSOCIATES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Irene Martin appeals the July 25, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Wal-Mart Associates, Inc. filed a
timely response.1 Petitioner did not file a reply brief. The issue on appeal is whether the
Board erred in affirming the March 7, 2022, order of the Workers’ Compensation Office
of Judges (“OOJ”) which upheld the claim administrator’s closure of Ms. Martin’s
temporary total disability (“TTD”) benefits and refusal to add lumbar sprain/strain as a
compensable condition to her claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 5111-
4 (2022). 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. Martin was injured when she fell during her employment while stocking shelves
at Wal-Mart on October 21, 2020. Radiographic imaging taken that day showed a lower
sacral fracture and a compression fracture at T12 with minimal loss of vertebral body height.
She was diagnosed with unspecified head injury, cervical strain, thoracic vertebral wedge
compression fracture, and fracture of the sacrum. The claim administrator held her claim
compensable by order dated October 30, 2020, for fractures at T11-T12 and the sacrum.

Petitioner is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq.
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Respondent is represented by Aimee M. Stern, Esq.

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On November 13, 2020, Ms. Martin saw orthopedist Samuel Finck, D.O., and he
diagnosed compression fractures of the thoracic vertebra and thoracic spine and ordered an
MRI. He noted her pain at T11-T12 and pain lower around her coccyx. Dr. Finck referred
Ms. Martin to his partner, Gordon Holen, D.O., for treatment of the compression fracture,
and stated she should not work for four weeks. She underwent an MRI on January 5, 2021,
which showed a “nearly 50%” compression fracture of the T12 vertebral body and a left
paracentral disc protrusion at T1-T2 but no stenosis.

On January 8, 2021, Ms. Martin saw Dr. Finck who noted on examination that her
back was unchanged from the prior visit and that she had maximal tenderness at the
thoracolumbar junction and paraspinal muscle spasms in the lower thoracic and higher
lumbar regions bilaterally. On March 1, 2021, Ms. Martin underwent a T12 kyphoplasty
for the T12 vertebral compression fracture performed by Dr. Holen. By March 23, 2021,
she reported some relief, but reported continued pain when standing and walking. Dr. Holen
administered a lumbar trigger point injection post-surgically and prescribed physical
therapy and Zanaflex because of her complaints of pain. Dr. Holen’s notes reflect that he
asked Ms. Martin to call within the next week if her pain did not continue to improve and
he would order an MRI at that time. He expected her to recheck with him in four weeks
and undergo updated x-rays.

On April 13, 2021, Ms. Martin returned to Dr. Holen and underwent x-rays which
showed a stable T12 kyphoplasty, dextroscoliosis, and stable degenerative disc disease with
spondylosis. Ms. Martin told Dr. Holen that she continued to have pain while standing and
walking and she did not feel able to return to work. Dr. Holen noted she had tenderness to
light palpation to her lower lumbar paraspinals. He also noted that she made “limited effort in
getting into” physical therapy and did not call his office to schedule an MRI when her pain
did not subside. He believed she could return to work without restriction and that she was at
maximum medical improvement (“MMI”). He stated that Ms. Martin’s:

[p]resentation seems very disability oriented. I asked her what
they had been doing to help get better since I had last seen them
as she had not done physical therapy, obtain[ed] the muscle
relaxants or contacted us back to initiate an updated MRI scan.
She stated that they had just been getting by and had hired an
attorney.

Based on Dr. Holen’s evaluation, the claim administrator suspended Ms. Martin’s
TTD benefits on April 14, 2021, and her TTD benefits were closed on May 13, 2021. Ms.
Martin was evaluated by Prasadarao Mukkamala, M.D., on June 2, 2021, for permanent
impairment. Dr. Mukkamala reported that Ms. Martin had attended physical therapy for one
month and returned to work on April 28, 2021, but could not tolerate the pain and resigned
after two days. She had reduced ranges of motion in the cervical and thoracic regions and
tenderness at her lower thoracic spine. He opined that her complaints of pain

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were out of proportion with his objective findings, and that her current symptoms were
related to her compensable injuries to some degree, but also related to preexisting
degenerative spondyloarthropathy. Dr. Mukkamala believed Ms. Martin was at MMI.

Ms. Martin began treating with Amanda Davis, PA-C, on June 29, 2021. Ms. Davis’s
notes report that Ms. Martin not only had thoracic pain after her compensable injury, but also
considerable pain in her tailbone and low back/lumbar area for which she had received no
treatment. Ms. Davis submitted a diagnosis update form on August 3, 2021, stating that Ms.
Martin had an acute onset of low back and pelvic pain on the date of the injury that was never
addressed and requested that lumbar sprain/strain be added as a compensable injury in the
claim. Ms. Davis’s notes indicate that she was seeking to order an MRI to investigate Ms.
Martin’s continued complaints of pain, suspecting that the fall caused some “displacement
triggering her pain.” Ms. Davis initially submitted a diagnosis code for low back pain to
workers’ compensation. The claim administrator contacted Ms. Davis and stated that because
Ms. Martin had been evaluated by Dr. Mukkamala and was determined to be at MMI, and
her last provider, Dr. Holen, had released her from treatment and to return to work, Ms. Davis
could not request the MRI under this claim. Furthermore, Ms. Davis was not Ms. Martin’s
“treating physician” for workers’ compensation purposes. The claim administrator
encouraged Ms. Davis to ask Ms. Martin to submit a letter requesting that Ms. Davis become
her provider of record and then submit a diagnosis update form with a diagnostic explanation
for Ms. Martin’s pain (i.e., strain, sprain, injury, etc.), and the claim administrator would
evaluate it to see if the claim could be reopened to add that diagnosis. Consequently, Ms.
Davis submitted the lumbar sprain/strain diagnosis update form in order to seek authorization
to order the lumbar MRI.

In an updated report letter dated September 8, 2021, Dr. Mukkamala disagreed with
Ms. Davis, opining that there was no evidence of any issues with Ms. Martin’s lumbar spine
on the date of her injury. He also stated that her low back pain was addressed in physical
therapy, which Ms. Martin could not tolerate. He explained, “[w]hen the claimant had T12
compression fracture and the sacral fracture, it is presumed that the claimant will have low
back pain. There was no separate fortuitous injury to the lumbar spine.” Based on Dr.
Mukkamala’s report, the claim administrator denied the request to add lumbar sprain/strain
to the claim. Ms. Martin protested the decision.

Ms. Martin was deposed on November 1, 2021. She testified that she had back pain
from the time of her workplace injury, and that her doctors ignored her complaints of low back
pain. She tried physical therapy, but it did not improve her lumbar pain. She tried to return to
work at Wal-Mart and work through the pain but could not do it. She was assigned to stand at
the entrance of the store and count customers as they entered. She testified that she was not
allowed to sit down, and that she vomited three times the first day because the pain from
standing was so severe. She returned the next day but could not complete her shift. Once again,
she said the pain was so severe she vomited multiple times while working. She tried sitting
down while she worked but testified that her employer took the

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chair away from her. Finally, Ms. Martin testified that she resigned because she was
physically unable to tolerate the working conditions and the severe pain.

Ms. Davis submitted a letter in support of Ms. Martin on December 8, 2021, stating
that she felt it medically necessary to proceed with the MRI in light of Ms. Martin’s continued
complaints of low back pain since her injury. However, on March 7, 2022, the OOJ upheld
the claim administrator’s decisions, concluding that the claim was properly closed for TTD
benefits because Ms. Martin did not submit any medical evidence to rebut the findings of Dr.
Holen and Dr. Mukkamala that her compensable injury had reached MMI. The OOJ also
concluded that Dr. Mukkamala’s opinion that Ms. Martin did not have a secondary condition
of lumbar strain was more persuasive than the diagnosis update submitted by Ms. Davis,
which requested the addition of the strain condition nine months after the date of injury in the
claim. Moreover, the OOJ found that Dr. Mukkamala’s opinions as a licensed physician
outweighed those made by Ms. Davis, who is not a medical doctor. Ms. Martin appealed and
the BOR affirmed the OOJ’s decision on July 25, 2022, on the same basis. It is from that order
that Ms. Martin now appeals.

The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), 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.

In her appeal, Ms. Martin argues that the BOR’s and OOJ’s decisions were clearly
wrong because a preponderance of the evidence establishes that her lumbar strain is directly
related to her compensable injury. She notes that she complained of lower back pain on the
date of her initial injury when she reported to the emergency department, and that her first
treating physician recorded her complaints of pain in her coccyx and muscle spasms in her
lumbar region. Dr. Holen noted that she had pain in her lower lumbar paraspinals and

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administered a lumbar trigger point injection in response. He told Ms. Martin that she
should call his office if her pain continued, and he would schedule an MRI. However, when
she told him a few weeks later that her pain was the same, he did not order the MRI. When
Ms. Davis later ordered the MRI in response to Ms. Martin’s continued low back pain, it
was deemed not compensable. Ms. Martin asserts that the record overwhelmingly
contradicts Dr. Mukkamala’s opinion that there is no evidence of a lower back injury.
Accordingly, she submits that it was not fair to blame her for her doctors’ failure to listen
to her complaints of lower back pain and provide necessary and reasonable treatment in
response. Likewise, she alleges that it was not fair to discontinue her TTD benefits when
she was not actually at MMI. She attempted to return to work but was not able to perform
her duties because of the constant debilitating pain. Ms. Martin submits that her TTD
benefits should be reinstated until her lumbar symptoms are properly addressed since they
were ignored after her injury.

Upon our review, we find no reversible error in the BOR’s decision to affirm the
OOJ’s order. Pursuant to our statutory standard of review, this Court may only reverse the
BOR in a limited set of circumstances: when its findings are in violation of statute, in excess
of its statutory authority or jurisdiction, made upon unlawful procedure, affected by some
error of law, or if its decision is clearly wrong, arbitrary, capricious, or characterized by abuse
of discretion. W. Va. Code § 23-5-12a(b) (2022). Ms. Martin seeks a reversal on the basis
that the lower tribunals were clearly wrong in view of the evidence. The Supreme Court of
Appeals of West Virginia has characterized that analysis in workers’ compensation cases as
“so clearly wrong based upon the evidentiary record that even when all inferences are
resolved in favor of the board’s findings, reasoning, and conclusions, there is insufficient
support to sustain the decision.” Delbert v. Murray American Energy, Inc., No. 20-0537, No.
21-0944, 2022 WL 16646484, *4 (W. Va. Nov. 3, 2022). We do not find those conditions
present here. The OOJ, in its role as factfinder, properly weighed the evidence and determined
that the rejection of lumbar strain as a secondary claim was not in error, giving greater weight
to the medical opinion of Dr. Mukkamala than to that of Ms. Davis, who is not a medical
doctor. The OOJ also determined that the suspension and closure of Ms. Martin’s TTD
benefits was appropriate because she had reached MMI as set forth by both Dr. Holen, her
treating physician who released her to return to work with no restrictions, and Dr.
Mukkamala. The OOJ found that Ms. Martin did not present medical evidence sufficient to
rebut these opinions. Thereafter, the BOR affirmed the OOJ’s order, adopting the same
findings of fact and conclusions of law. Ms. Martin has not made a showing that the BOR’s
affirmance is clearly wrong. Therefore, we must affirm.

Affirmed.
ISSUED: January 10, 2023
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CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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