DAVIS, Justice:
This appeal was filed by William L. Gill ("Mr. Gill") from an adverse final order of the Workers' Compensation Board of Review ("the Board"). The Board's order reversed a decision by the Workers' Compensation Office of Judges ("the OOJ"), which had added four new diagnoses to Mr. Gill's initial compensable claim for a lumbar and thoracic sprain injury. The Board found that the additional four diagnoses were noncompensable preexisting conditions. In this appeal, Mr. Gill seeks to have the OOJ's decision reinstated.
The facts of this case involve injuries to Mr. Gill's back. Mr. Gill's first back injury appears to have occurred in 1985, when he was 18 years old. This noncompensable injury occurred "when he lifted the door handle up on his car and felt back pain[.]"
Mr. Gill received treatment at Short Chiropractic, Inc. ("chiropractic clinic"), for back problems associated with the 1992 fall. Treatment notes from the chiropractic clinic in April of 2004 indicated that Mr. Gill was being treated for lumbar radiculopathy (diagnosis code 724.3), lumbar disc degenerative disc disease (diagnosis code 722.52), lumbar disc displacement (diagnosis code 722.10), and lumbar facet syndrome (diagnosis code 724.8). Mr. Gill was treated by the chiropractic clinic for thoracic and lumbar complaints during the years 2005, 2006, 2008, 2009, 2011, and 2012. In treatment notes, dated February 7, 2012, the chiropractic clinic indicated Mr. Gill was being treated for thoracalgia (diagnosis code 724.1), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and muscle spasm (diagnosis code 728.85).
On February 8, 2012, Mr. Gill injured his back while lifting a practice dummy during firefighter training. This injury was ruled compensable and diagnosed as lumbar (diagnosis code 847.2) and thoracic (diagnosis code 847.1) sprain. In March of 2012, Dr. David Weinsweig examined Mr. Gill and reported that "he suffers from pain temporally related to the injury at work with degenerative disc disease and an element of radiculopathy." In June of 2012, Dr. Bill Hennessey performed an independent medical evaluation of Mr. Gill. Dr. Hennessey reported that Mr. Gill had reached maximum medical improvement and had made a full recovery from the compensable injury without any impairment. As a result of Dr. Hennessey's evaluation, in
In August of 2012, the chiropractic clinic requested authorization for injections to treat Mr. Gill for neuritis/radiculitis (diagnosis code 724.4), sciatica (diagnosis code 724.3), degeneration of lumbar or lumbosacral IVD (diagnosis code 722.52), and facet syndrome (diagnosis code 724.8). The Claim Administrator denied the request based upon Dr. Hennessey's report.
While the case was pending before the OOJ, an independent medical evaluation was performed on Mr. Gill by Dr. P.B. Mukkamala. A medical opinion rendered by Dr. Mukkamala in January of 2013 concluded that Mr. Gill's compensable injury had reached maximum medical improvement and did not aggravate his preexisting injuries.
The OOJ treated the request for authorization for injections for four diagnoses as a request to add the four diagnoses as compensable components of the claim. The OOJ eventually issued an order finding that the four diagnoses, neuritis/radiculitis (diagnosis code 724.4), sciatica (diagnosis code 724.3), degeneration of lumbosacral IVD (diagnosis code 722.52), and facet syndrome (diagnosis code 724.8), were compensable. The OOJ reasoned as follows:
The City appealed the OOJ decision to the Board. By order entered August 29, 2014, the Board reversed the decision of the OOJ and concluded "that the additional diagnoses are not compensable components of the claim." Mr. Gill filed this appeal.
The standard of review applicable to this Court's consideration of workers' compensation appeals has been set out under W. Va.Code § 23-5-15 (2005) (Repl. Vol. 2010), in relevant part, as follows:
See Hammons v. West Virginia Office of Ins. Comm'r, 235 W.Va. 577, 582-83, 775 S.E.2d 458, 463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising
In this proceeding, Mr. Gill asks this Court to reinstate the OOJ decision that added four preexisting noncompensable conditions to his claim. Before we address the merits of Mr. Gill's appeal, we first must place this case in its proper context.
To begin, the record is clear in showing that no physician requested the diagnostic codes 724.4 (neuritis/radiculitis), 724.3 (sciatica), 722.52 (degeneration of lumbosacral IVD), and 724.8 (facet syndrome) be added as compensable elements of Mr. Gill's February 8, 2012, injury. The chiropractic clinic requested authorization from the Claim Administrator to provide Mr. Gill with injections to treat only the four diagnostic codes. After the request was denied by the Claim Administrator, Mr. Gill protested the denial of authorization for the injections. Subsequent to the protest being filed with the OOJ, the OOJ sua sponte treated the protest as a request to add the four diagnostic codes to the compensable claim. It does not appear that an objection was made by the City, at the administrative level, to the OOJ's conversion of the protest. In the appeal to this Court, the City has pointed out that no formal request was ever made to add the four diagnostic codes to the claim.
This Court has set out the framework for finding a workers' compensation claim compensable as follows: "In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment." Syl. pt. 1, Barnett v. State Workmen's Comp. Comm'r, 153 W.Va. 796, 172 S.E.2d 698 (1970). See also W. Va.Code § 23-4-1(a) (2008) (Repl. Vol. 2010) ("[W]orkers' compensation benefits shall be paid the Workers' Compensation Fund, to the employees of employers subject to this chapter who have received personal injuries in the course of and resulting from their covered employment[.]" (emphasis added)). All three of these elements must be satisfied for an injury to be held compensable.
In the instant proceeding, the record is clear in showing that the four diagnostic codes added by the OOJ were conditions that Mr. Gill was being treated for prior to the occurrence of the compensable injury of February 8, 2012. The OOJ's order specifically stated that "the requested diagnostic codes ... were also part of the claimant's diagnostic portrait prior to the compensable injury[.]" In view of this fact, we find as a matter of law that the four diagnostic codes were not compensable injuries. We have long held that "[i]n determining whether an injury resulted from a claimant's employment, a causal connection between the injury and employment must be shown to have existed." Syl. pt. 3, Emmel v. State Comp. Dir., 150 W.Va. 277, 145 S.E.2d 29 (1965). No such causal connection with the four diagnostic codes was shown below or in this appeal.
Having determined that the four diagnostic codes were not compensable injuries, we must determine whether any basis existed for the OOJ to rule that these diagnoses were compensable. In making the compensability
(Emphasis added). From this statement, it is clear that the OOJ found that (1) there was sufficient evidence in the record to show that the compensable injury aggravated the four preexisting diagnostic codes and (2) because of such aggravation, the preexisting injuries could be added as compensable claims. We will address these two issues separately.
The only medical evidence relied upon by the OOJ to find that the four diagnostic codes were aggravated by the compensable injury was a statement by Dr. Weinsweig in a March 2012 report. In a treatment note, Dr. Weinsweig reported that Mr. Gill "suffers from pain temporally related to the injury at work with degenerative disc disease and an element of radiculopathy." The OOJ interpreted this statement to mean that Dr. Weinsweig "opined that the claimant's current condition was temporarily related to the compensable injury." The OOJ's interpretation is misleading.
When Dr. Weinsweig examined Mr. Gill in March of 2012, it was only a few weeks after the compensable injury of February 8, 2012. Thus, the pain Dr. Weinsweig referred to was pain "temporally related" to the compensable injury. This pain was consistent with the expected duration of the compensable injury. As will be shown, Mr. Gill's compensable injury was expected to be treated for up to four weeks, and not to exceed eight weeks. The OOJ, for reasons unknown, interpreted Dr. Weinsweig's statement to mean that the pain associated with the August 2012 request for authorization for injections by the chiropractic clinic was the same pain that Dr. Weinsweig noted in March of 2012. The record does not support such an interpretation.
In June of 2012, Dr. Hennessey performed an independent medical evaluation of Mr. Gill. In his report, Dr. Hennessey made the following relevant findings:
It is clear from Dr. Hennessey's report that Mr. Gill did not have any pain from his compensable injury in June of 2012, and that the pain he was experiencing was the same pain he had before the compensable injury. In other words, Dr. Hennessey reported that the preexisting injuries were not aggravated by the compensable injury.
The conclusion reached by Dr. Hennessey also was reached by Dr. Mukkamala in his report of January 2013. Dr. Mukkamala's report set out the following relevant findings:
It is clear that Dr. Mukkamala found that the compensable injury resolved itself and that it did not aggravate any preexisting injuries.
In summation, Mr. Gill failed to produce any medical evidence that his compensable injury of February 8, 2012, aggravated his preexisting noncompensable injuries. The only medical evidence in the record submitted in this appeal that addressed the issue of the impact of the compensable injury on preexisting injuries was provided by Dr. Hennessey and Dr. Mukkamala. Both physicians concluded that the compensable injury did not aggravate the preexisting injuries.
The conclusion we have reached on this issue also was addressed in Johnson v. Advanced Diesel Technologies, LLC, No. 14-0068, 2015 WL 2166822, at *2 (W.Va. May 7, 2015) (memorandum decision). In Johnson, the claimant injured his back on June 17, 2011, while at work, and filed a claim for workers' compensation benefits. The claim was held compensable for a lumbar strain. The claimant underwent numerous examinations because of pain that was not consistent with the compensable injury. In spite of such complaints of pain, the claimant was eventually found to have reached maximum medical improvement related to his compensable lumbar sprain. A physician subsequently submitted a request that displacement of lumbar intervertebral disc be added as a compensable condition of the claim. This request was denied on the grounds that the injury was a preexisting condition that was not aggravated by the compensable lumbar strain. On appeal, this Court affirmed as follows:
Johnson, 2015 WL 2166822, at *3. See also Destefano v. Severstal Wheeling, Inc., No. 12-0002, 2013 WL 5989270, at *3 (W.Va. Nov. 7, 2013) (memorandum decision) ("The evidence in the record shows that Mr. Destefano did not suffer an aggravation of his pre-existing degenerative disc disease as a result of his compensable injury.").
In finding that noncompensable preexisting injuries could be added to a claim as compensable injuries, when they are aggravated by a compensable injury, the OOJ relied upon the decisions in Charlton v. State Workmen's Compensation Commissioner, 160 W.Va. 664, 236 S.E.2d 241 (1977), and Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972). Neither case supported the OOJ's conclusion on this issue.
To begin, in Charlton the claimant developed ulcerated feet as a result of working in mine water containing magnetite, sulphuric acid, grease, oil, and kerosene. The claimant filed a workers' compensation claim as a result of his ulcerated feet. The claim was denied because the claimant had a preexisting noncompensable blood vessel disease known as Buerger's Disease. The claim was denied even though the evidence showed that the claimant's ulcerated feet may have resulted from an aggravation of the Buerger's Disease. On appeal, this Court reversed. In doing so, we relied upon two previous decisions rendered by this Court. Charlton noted that, in Hall v. Compensation Commissioner, 110 W.Va. 551, 159 S.E. 516 (1931), this Court held:
Charlton, 160 W.Va. at 667, 236 S.E.2d at 243 (quoting Syl., Hall, 110 W.Va. 551, 159 S.E. 516). The decision in Charlton also cited to Manning v. State Compensation Commissioner, 124 W.Va. 620, 22 S.E.2d 299 (1942), where it was held:
Charlton, 160 W.Va. at 667, 236 S.E.2d at 243 (quoting Syl. pt. 3, Manning, 124 W.Va. 620, 22 S.E.2d 299).
In the instant case, the decision in Charlton does not support the decision of the OOJ to add four preexisting back conditions as compensable components of Mr. Gill's claim. This is because Charlton did not state that the preexisting Buerger's Disease was a compensable injury. Instead, Charlton held that the claim of ulcerated feet was compensable, even though it may have resulted only because of the noncompensable disease. Assuming, for the sake of argument, that Mr. Gill's lumbar and thoracic injuries on February 8, 2012, resulted only because of his
In the Jordan decision relied upon by the OOJ, the claimant alleged that he injured his back while lifting a box at work. At the time of the injury, the claimant had a noncompensable preexisting back injury. At the administrative level it was determined that the claimant did not suffer a compensable injury at work. On appeal, this Court affirmed after concluding that the evidence was conflicting as to whether the claimant actually sustained an injury at work. The opinion went on to discuss the issue of a work injury and a preexisting injury:
Jordan, 156 W.Va. at 165-66, 191 S.E.2d at 501 (internal quotations and citations omitted). Although the decision in Jordan recognized that a compensable injury cannot be denied because of the existence of a noncompensable preexisting injury, that case rejected the notion that a noncompensable preexisting injury could, in and of itself, be deemed compensable. Nothing in Jordan supported the decision of the OOJ to add Mr. Gill's preexisting injuries as compensable components of the claim.
In the recent decision in AT&T Mobility Services, LLC v. Spoor, No. 14-0396, 2015 WL 6840126 (W.Va. Nov. 4, 2015) (memorandum decision), we applied Charlton and Jordan to uphold the compensability of injuries occurring because of a preexisting condition. In AT & T, the claimant, while standing, injured her back when she merely turned around to answer a question by a co-worker. The claimant was diagnosed with cervical, thoracic, and lumbar sprain, as well as a right knee sprain. The Claim Administrator rejected the claim. The OOJ reversed and found that the claimant was injured during the course of and as a result of her employment. The Board affirmed. The employer appealed and argued that the claimant had a preexisting back problem that caused the injuries and therefore compensability could not be found. We affirmed the compensability determination after citing to Charlton and Jordan for the proposition that a preexisting injury does not preclude a new compensable injury from arising. We stated that "[b]ecause the evidence establishes that she was injured in the course of and as a result of her employment, the Office of Judges and Board of Review were correct in holding the claim compensable for a cervical strain, thoracic spine strain, lumbar strain, and a right knee injury." AT&T, 2015 WL 6840126, at *2. See also Robinson v. General Glass Co., No. 14-0643, 2015 WL 6844975, at *4 (W.Va. Nov. 4, 2015) (memorandum decision) ("While there was ample evidence of previous back and hip problems, this Court has consistently held that a preexisting condition will not bar a claimant from receiving workers' compensation benefits for an injury that occurs in the course of and as a result of their employment."); Johnson v. Mid-Ohio Valley Transit Auth., Inc., No. 14-0152, 2014 WL 6461647, at *2 (W.Va. Nov. 14, 2014) (memorandum decision) ("The Office of Judges found that the evidence of record demonstrating the existence of pre-existing neck pain fails to prove that Mr. Johnson did not sustain a new work-related injury to his neck on October 14, 2011."); Fulton v. West Virginia Office of Ins. Comm'r, No. 101267, 2012 WL 3176364, at *2 (W.Va. June 14, 2012)
Mr. Gill also has cited to the decision in Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968), as support for the decision of the OOJ. In Dunlap, the claimant injured her back at work while lifting a one or two pound cafeteria tray. The injury was ruled compensable as a back sprain. The employer appealed the compensability ruling. This Court found that there was evidence that the claimant had a prior back injury. However, we affirmed the compensability ruling because it did "not appear from the record that the diagnoses of low back strain or sprain could have been confused with the preexisting condition disclosed by the X-ray report." Dunlap, 152 W.Va. at 365, 163 S.E.2d at 609. Dunlap is consistent with Charlton and Jordan and does not support the decision of the OOJ in this case.
The Charlton, Jordan, and Dunlap line of cases all recognize compensability of an injury that may have occurred only because of a preexisting injury. These cases do not stand for the proposition that merely because a noncompensable preexisting injury was aggravated, it is fully compensable. It is only a new injury resulting from the aggravation of the preexisting injury that becomes compensable. This proposition is consistent with our apportionment statute, W. Va.Code § 23-4-9b (2003) (Repl. Vol. 2010).
The apportionment statute is invoked when a claimant seeks a disability award. This statute reads, in relevant part, as follows:
The apportionment "statute is designed to separate out preexisting disability from the disability arising from the current compensable injury where less than total disability is sought." Gallardo v. Workers' Comp. Comm'r, 179 W.Va. 756, 760 n. 5, 373 S.E.2d 177, 181 n. 5 (1988). That is, it "directs that any preexisting impairment be deducted from any impairment resulting from an occupational injury." Rose v. West Virginia Office of Ins. Comm'r, No. 101552, 2012 WL 3205835, at *2 (W.Va. June 18, 2012) (memorandum decision).
Insofar as the apportionment statute does not permit a claimant to receive a permanent partial disability award for a non-compensable preexisting injury, it stands to reason that such a preexisting injury cannot be ruled compensable. We therefore make clear, and so hold, that a noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.
In view of the foregoing, the order of the Workers' Compensation Board of Review, dated August 29, 2014, is affirmed.
Affirmed.