Blackhawk Mining, LLC v. Harris Argabright

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
BLACKHAWK MINING, LLC, December 6, 2024
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS

v.) No. 24-ICA-184 (JCN: 2021020512) OF WEST VIRGINIA

HARRIS ARGABRIGHT,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Blackhawk Mining, LLC (“Blackhawk Mining”) appeals the March 27,
2024, order of the Workers’ Compensation Board of Review (“Board”). Respondent Harris
Argabright timely filed a response.1 Blackhawk Mining did not reply. The issue on appeal
is whether the Board erred in reversing the claim administrator’s order and authorizing an
MRI of the lumbar spine.

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.

Mr. Argabright, an electrician for Blackhawk Mining, completed an Employees’
and Physicians’ Report of Occupational Injury or Disease dated February 26, 2021, which
stated that he sustained injuries to his lower back and pelvic area while at work on February
25, 2021, when he was tightening a strap and felt a pulling sensation. The physician’s
portion was completed by personnel at Family HealthCare Associates on February 26,
2021, and the diagnosis was listed as lumbar sprain.

On February 26, 2021, Mr. Argabright underwent an x-ray of his lumbar spine,
which revealed no acute lumbar spine abnormality; minimal grade 1 retrolisthesis of L3 on
L4 with mild L3-4 disc space narrowing that was about the same as prior x-rays on June 4,
2013; mild L5-S1 disc space narrowing; and bilateral facet arthropathy at L5-S1 that was
about the same as prior x-rays on June 4, 2013.

1
Blackhawk Mining is represented by Jeffrey B. Brannon, Esq. Mr. Argabright is
represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.

1
By order dated March 8, 2021, the claim administrator authorized a lumbar spine
MRI without contrast but did not determine the compensability of Mr. Argabright’s claim.
Mr. Argabright underwent the MRI on March 9, 2021, which had the impression of T11-
T12 narrowing of the disc space, degenerative disc desiccation, and the suggestion of a
mild disc bulge; minimal to mild disc bulges from L2-L3 to L5-S1 with no focal disc
protrusion seen in the lumbar spine; hypertrophy of the posterior elements at several levels;
relatively mild acquired narrowing of the canal at L5-S1 without central spinal stenosis;
narrowing of the neural foramina, especially at L4-L5 and L5-S1; and of an incidental note,
describing a small single hyperintensity in each kidney that may reflect cysts. It was noted
that a non-emergent renal ultrasound might be helpful for further evaluation. A comparison
was made with the lumbar spine radiographs from February 26, 2021, and thoracic spine
radiographs from June 4, 2013.

On April 5, 2021, the claim administrator issued an order holding the claim
compensable for lumbar sprain/strain.

On May 11, 2021, Prasadarao Mukkamala, M.D., performed an independent
medical evaluation (“IME”) of Mr. Argabright, who reported low back pain with radiation
to the left lower extremity. Dr. Mukkamala diagnosed lumbar sprain superimposed upon
preexisting, noncompensable degenerative spondyloarthropathy. Dr. Mukkamala opined
that Mr. Argabright had reached maximum medical improvement (“MMI”) for the
compensable injury. Further, Dr. Mukkamala opined that the lumbar sprain did not
preclude Mr. Argabright from returning to work at full duty with no restrictions; that he
did not require any further medical treatment; and that there was no indication for a referral
to Rajesh Patel, M.D. Further, Dr. Mukkamala stated that there was no objective medical
evidence of radiculopathy or spinal instability, and, as such, Mr. Argabright did not require
any surgical treatment. Dr. Mukkamala concluded that Mr. Argabright had received
adequate physical therapy and there was no need for further treatment. By order dated May
17, 2021, the claim administrator denied the request for a referral to Dr. Patel based on Dr.
Mukkamala’s report. Mr. Argabright protested this order.

On May 13, 2021, Mr. Argabright was evaluated by Robyn Miller, PTA. Mr.
Argabright reported that he had seen improvements since coming to physical therapy, but
that he did not feel like he did before the accident. Ms. Miller noted that Mr. Argabright
was still suffering from low back pain. Mr. Argabright was discharged to a home exercise
program on May 24, 2021.

On June 21, 2021, Michael Muscari, M.D., Mr. Argabright’s treating physician,
completed a Diagnosis Update form, which requested that the secondary diagnoses of disc
bulges at L2, L3, L5, and S1 be added as compensable conditions in the claim.

By order dated July 1, 2021, the claim administrator denied the request from Dr.
Muscari to add the diagnoses of disc bulges at L2, L3, L4, L5, and S1 as compensable

2
conditions in the claim. An OOJ decision dated May 19, 2022, reversed the claim
administrator’s order and added the diagnoses of disc bulges at L2, L3, L4, L5, and S1 as
compensable conditions in the claim. This decision also reversed the claim administrator’s
May 17, 2021, order and granted authorization for a referral to Dr. Patel. This decision was
affirmed by the Board by order dated October 21, 2022.

On January 15, 2022, Michael Brooks, M.D., completed an age of injury analysis
report, which considered the March 9, 2021, MRI of Mr. Argabright’s lumbar spine. Dr.
Brooks opined that these findings were chronic and related to degenerative disc disease
and facet joint arthrosis at L2-3, mild to moderate central canal stenosis at L4-5, and mild
to moderate central canal stenosis and moderate bilateral neuroforaminal narrowing,
degenerative disc disease, and facet joint arthrosis at L5-S1.

A May 31, 2022, MRI of Mr. Argabright’s lumbar spine revealed mild canal
stenosis at L4-L5 and central disc protrusion at L5-S1.

In an October 31, 2022, progress note, Dr. Patel stated that Mr. Argabright had
excellent relief with the epidural injection; that he felt more functional and markedly
improved after the injection; that he got better relief with the injection than with medial
branch blocks; and that it would be reasonable to try the epidural injections again. Dr. Patel
noted that if Mr. Argabright did not do well with the epidural injections, they would
consider doing a lumbar decompression versus decompression and fusion.

On November 4, 2022, Dr. Patel performed a bilateral transforaminal epidural
injection at L5-S1 for the diagnoses of lumbar sprain, lumbar disc protrusion at L5-S1, and
lumbar radiculitis. On December 7, 2022, Mr. Argabright followed up with Dr. Patel, and
reported that while he experienced short term relief from the injections, he was having
some pain in his back with extension. Dr. Patel noted that this was consistent with facet
mediated pain, and that it might be reasonable now to try some medial branch blocks.

On December 28, 2022, Mr. Argabright underwent an EMG/NCS. Barry Vaught,
M.D., reviewed the studies and indicated that there was electrophysiologic evidence for an
active L5-S1 radiculopathy on the left, that there was no evidence of L5-S1 radiculopathy
on the right, and that there was no evidence for diabetic polyneuropathy.

Mr. Argabright was seen by Dr. Patel on February 27, 2023, who assessed lumbar
disc protrusion at L5-S1, bilateral lateral recess narrowing at L4-L5, bilateral lateral recess
narrowing at L5-S1, bilateral neural foraminal narrowing at L5-S1, lumbar facet sprain,
lumbar sprain, and L5-S1 radiculopathy. Dr. Patel noted that there were some objective
findings of radiculopathy on the EMG study, and opined that radiculopathy was
compensable and should be added to the claim.

3
Mr. Argabright was again seen by Dr. Patel on June 7, 2023. Dr. Patel assessed
lumbar disc protrusion at L5-S1, lateral recess narrowing bilateral L4-L5, bilateral recess
narrowing at L5-S1, left greater than right side, bilateral neural foraminal narrowing L5-
S1, lumbar facet sprain, and left L5-S1 radiculopathy. Dr. Patel again opined that Mr.
Argabright would benefit from epidural injections. Dr. Patel’s August 28, 2022, progress
note indicated that Mr. Argabright was still having lumbar spine pain, his last lumbar spine
MRI was in 2022, and that an MRI of the lower back would be helpful to evaluate the disc
protrusions and make sure there is no interval change.

By order dated September 19, 2023, the claim administrator denied Dr. Patel’s
request for an MRI of the lumbar spine. Mr. Argabright protested this order.

A Board of Review order dated September 21, 2023, reversed the claim
administrator’s order of February 3, 2023, and authorized bilateral medial branch nerve
blocks at L3-L4, L4-L5, and L5-S1.

Dr. Mukkamala performed an additional IME of Mr. Argabright on November 7,
2023, and diagnosed a lumbar sprain/strain superimposed on preexisting noncompensable
degenerative lumbar spondyloarthropathy, for which he had reached MMI. With regard to
the disc bulges at L2, L3, L4, L5, and S1, Dr. Mukkamala opined that there was an
exacerbation but not an aggravation, and that the ongoing conditions were causally related
to the noncompensable preexisting degenerative spondyloarthropathy. Dr. Mukkamala
opined that there was no objective evidence of radiculopathy and no evidence of loss of
motion segment integrity, and that there was no indication of need for a repeat MRI.

By order dated March 27, 2024, the Board reversed the claim administrator’s order,
dated September 19, 2023, and granted authorization for an MRI of the lumbar spine. The
Board noted that Dr. Patel stated that Mr. Argabright continued to have lumbar pain, and
recommended an MRI of the lower back to evaluate disc protrusions and to make sure there
is no interval change. Further, the Board stated that pursuant to this Court’s decision in
Blackhawk Mining, LLC v. Argabright, 2023 WL 3167476 (W. Va. Ct. App. 2023)2, Mr.

2
In Blackhawk Mining, LLC v. Argabright, 2023 WL 3167476 (W. Va. Ct. App.
2023), this Court addressed the issue of compensability of Mr. Argabright’s disc bulges.
This Court reversed the Board’s October 21, 2022, order, in part, and found that it erred in
summarily concluding that Mr. Argabright’s preexisting disc bulges were compensable.
This Court affirmed the Board’s order in part and concluded that treatment of the newly
symptomatic disability with a referral to Dr. Patel was appropriate, as Mr. Argabright’s
preexisting discs and degenerative disc desiccation were asymptomatic prior to the
compensable injury, and the treatment of his pain flowed from the compensable injury, not
the preexisting condition. This decision was affirmed by the Supreme Court of Appeals of

4
Argabright is entitled to treatment for the pain that developed following the compensable
injury. It is from this order that Blackhawk now appeals. Blackhawk’s appeal is limited to
the issue of authorization for an additional MRI of the lumbar spine.

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, Blackhawk Mining argues that an additional MRI of the lumbar spine is
not medically necessary or reasonably required treatment for the compensable condition in
this claim. Blackhawk Mining also asserts that the Board’s decision was contrary to this
Court’s prior opinion. Further, Blackhawk Mining asserts that the Board ignored the
Supreme Court of West Virginia’s holding in Syllabus Point 5 of Moore v. ICG Tygart
Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) that the presumption of disability
created is rebuttable by the employer. We disagree.

The claim administrator must provide medically necessary and reasonably required
medical treatment for a compensable injury. See West Virginia Code § 23-4-3 (2005); West
Virginia Code of State Rules § 85-20-9.1 (2006).

Moreover, as set forth by the Supreme Court of Appeals of West Virginia, “[t]he
‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones

West Virginia in Argabright v. Blackhawk Mining, LLC, No. 23-381, 2024 WL 3984505
(W. Va. Aug. 27, 2024) (memorandum decision).

5
which presume an agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473
S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude
that the Board was clearly wrong in reversing the claim administrator’s order and
authorizing an MRI of the lumbar spine.

Here, the record supports the Board’s conclusion that an MRI of the lumbar spine
is medically necessary and reasonably required treatment for the compensable injury. Dr.
Patel noted that Mr. Argabright continued to have lumbar pain and opined that an MRI of
the lumbar spine would be helpful to evaluate his disc protrusions and to make sure that
there is no interval change. Further, Mr. Argabright’s symptoms in his back were
asymptomatic prior to the compensable injury. Following the compensable injury, Mr.
Argabright developed pain in the areas affected by the preexisting conditions. Although
Blackhawk Mining argues that the Board’s order is contrary this Court’s prior opinion, the
referral to Dr. Patel was initially authorized by this Court. Based on the foregoing, we
conclude that the Board was not clearly wrong in finding that the MRI of the lumbar spine
was medically necessary and reasonably required treatment for the compensable injury.

Finally, Blackhawk Mining argues that the Board’s decision ignores Syllabus Point
5 of Moore v. IGC Tygart Valley, 247 W. Va. 292, 879 S.E.2d 779 (2022), which held that:

A claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive, it may be rebutted by the employer.

We find no merit in this argument, as both this Court and the Board found that Mr.
Argabright’s pain flows from the compensable injury. Further, a Moore analysis would not
affect the outcome here, as compensability is not at issue in this appeal. Instead, the issue
on appeal is authorization for an MRI of the lumbar spine.

Accordingly, we affirm the Board’s March 27, 2024, order.

Affirmed.

ISSUED: December 6, 2024

6
CONCURRED IN BY:

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

7