Renee Wheeler v. Cardinal Health 110, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
RENEE WHEELER, February 8, 2024
Claimant Below, Petitioner C. CASEY FORBES, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-417 (JCN: 2020011957)

CARDINAL HEALTH 110, LLC,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Renee Wheeler appeals the August 23, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Cardinal Health 110, LLC
(“Cardinal Health”) timely filed a response. 1 Ms. Wheeler filed a reply. The issue on appeal
is whether the Board erred in affirming the claim administrator’s order, which granted Ms.
Wheeler a 1% permanent partial disability (“PPD”) award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (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.

On October 23, 2019, Ms. Wheeler was lifting a box over her head when she
experienced pain behind her left shoulder blade. Ms. Wheeler continued to work and two
days later, on October 25, 2019, she experienced similar symptoms while lifting a box from
the floor. Ms. Wheeler sought treatment at MedExpress on October 30, 2019, and a
physical examination revealed that her range of motion in her upper back was normal, there
was no midline tenderness in the upper back, and she had full strength against resistance
in her upper back. Ms. Wheeler was diagnosed with a thoracic sprain and, with the
assistance of MedExpress staff, completed an application for workers’ compensation
benefits.

Ms. Wheeler returned to MedExpress on November 4, 2019, with continued
complaints of pain. Clinical notes indicate that her range of motion was limited due to pain
and paraspinal tenderness and muscle spasms were noted in the upper back. By order dated
November 7, 2019, the claim administrator held the claim compensable for a thoracic

1
Ms. Wheeler is represented by Sandra K. Law, Esq. Cardinal Health is represented
by Jane Ann Pancake, Esq., and Jeffrey B. Brannon, Esq.
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sprain. On November 11, 2019, Ms. Wheeler returned to MedExpress, and her strength and
range of motion appeared normal during the physical exam. She was also noted to have
full strength and range of motion in her upper back during examination on November 18,
2019, and December 9, 2019, although pain continued to be noted in strength testing.
Medication and physical therapy were prescribed.

On November 25, 2019, Ms. Wheeler was treated by Charla Anderson, M.D. Ms.
Wheeler reported pain behind her left shoulder blade, and Dr. Anderson noted upper back
mobility deficits. Ms. Wheeler continued with physical therapy through December of 2019.
On February 6, 2020, Ms. Wheeler was seen by Ian Saxer, PA, who was supervised by
Edward Prostko, M.D. Ms. Wheeler reported pain in the left periscapular region that began
after feeling a pop in the area when lifting a box over her head. Mr. Saxer assessed
musculoskeletal back pain and recommended an MRI to rule out a structural lesion.

Ms. Wheeler underwent an MRI of her thoracic spine on February 21, 2020, which
revealed spondylosis and disc disease with bulging from T5-T10 and a disc herniation at
T10-T11. Ms. Wheeler returned to Dr. Prostko on March 6, 2020, and he noted that
physical examination revealed no focal sensory deficits and that her muscle stretch reflexes
were active symmetrically with no pathological reflexes. Dr. Prostko did not observe any
clear mechanical problems that could explain Ms. Wheeler’s ongoing symptoms and, as
such, recommended an MRI of her cervical spine and a CT SPECT bone scan. A physician
assistant in Dr. Prostko’s office, Nicole Kovach, also examined Ms. Wheeler and noted
that although the thoracic MRI showed mild disc bulging, there was nothing at a level that
would explain Ms. Wheeler’s symptoms.

Ms. Wheeler underwent an MRI of her cervical spine and a CT SPECT bone scan
on May 4, 2020. The MRI revealed diffuse disc bulging at C3-C6, and the impression was
various degrees of spinal canal and foraminal stenosis from C3-C6, mild desiccation of the
C3-C6 discs with mild loss of disc height at C4-C5 and a focal posterior annular fiber
rupture involving C4-C5 and C5-C6, reversal of the normal cervical curvature centered at
C4, and small anterior osteophytes from C4-C6.2 The bone scan was negative. Ms. Wheeler
returned to see Dr. Prostko on May 21, 2020. Dr. Prostko reviewed the imaging studies and
noted that Ms. Wheeler did have a moderate disc osteophyte complex on the right at C4-
C5, but nothing on the left side that would indicate operative intervention. Dr. Prostko
further noted that there was no evidence of an active facet arthropathy.

2
Of note, in March of 2017, Ms. Wheeler sought treatment for complaints of pain
in her neck and bilateral upper extremities. Ms. Wheeler underwent an MRI of her cervical
spine, which revealed a disc herniation on the left at C5-C6, and an EMG, which was
positive for C6 radiculopathy. The record appears to indicate that Ms. Wheeler’s symptoms
in her neck and left upper extremity had resolved by April of 2017.
2
On June 2, 2020, Ms. Wheeler was seen by Todd Franco, D.O., an orthopedist. Dr.
Franco noted no pain with range of motion in either shoulder. Dr. Franco suspected a
muscle tear and recommended an MRI of the left scapula, which was performed on July 7,
2020. The impression was “unremarkable exam without any finding to explain the patient’s
symptoms.” Ms. Wheeler returned to Dr. Franco and his associate, Timothy Lipp, D.O., on
July 9, 2020, and July 20, 2020. Tenderness to palpation at the inferior border of the scapula
was noted, but overall, the left shoulder exam was normal. Drs. Franco and Lipp diagnosed
periscapular pain and referred Ms. Wheeler to orthopedist Peter Tang, M.D.

Ms. Wheeler was seen by Dr. Tang and his colleague Victor Greco, M.D., on July
22, 2020. Ms. Wheeler had full active and passive range of motion in her left shoulder, but
some asymmetry of the scapula with left lateral scapular winging was noted. A recent MRI
of the left scapula revealed some abnormalities about the insertion of the serratus anterior
insertion site, so Drs. Tang and Greco recommended an MRI of Ms. Wheeler’s chest. The
MRI of Ms. Wheeler’s chest, performed on August 18, 2020, was negative for any tears.

Ms. Wheeler again treated with Dr. Franco on September 29, 2020, and continued
to complain of pain behind her shoulder blade. Dr. Franco noted tenderness over the medial
scapular border and pain with serratus anterior activation during physical examination. Dr.
Franco assessed periscapular pain and serratus anterior muscle pain and recommended
additional physical therapy.

On November 10, 2020, Ms. Wheeler underwent an independent medical evaluation
(“IME”) performed by Thomas D. Kramer, M.D. Upon physical examination, Dr. Kramer
noted that there was no palpable or visible spasm or swelling, no evidence of tenderness
over the cervical or thoracic region, no evidence of scapular winging or dyskinesis, and no
asymmetry of the trapezius muscles. Dr. Kramer did note tenderness over the lower
scapular region. Ms. Wheeler’s neurologic examination was objectively normal. Dr.
Kramer opined that Ms. Wheeler had sustained a thoracic and left scapular strain as a result
of her work-related injury but noted that there was nothing to explain her ongoing
complaints of pain. According to Dr. Kramer, Ms. Wheeler had fully recovered from her
strains and that “[t]here are absolutely no objective findings on her physical examination
to substantiate an ongoing scapular and thoracic strain.” In fact, the only abnormality, Dr.
Kramer stated, was subjective tenderness. Dr. Kramer indicated that Ms. Wheeler was fully
recovered and needed no further medical treatment. He did not provide an impairment
rating.

On January 6, 2021, Ms. Wheeler returned to see Dr. Franco. Ms. Wheeler reported
new symptoms, including numbness in her arms and legs, which Dr. Franco did not
attribute to the instant work-related injury. During the physical examination, Dr. Franco
noted Ms. Wheeler’s range of motion to be unrestricted in all planes.

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Ms. Wheeler underwent a second IME, which was performed by Bruce Guberman,
M.D., on February 25, 2022. Dr. Guberman diagnosed chronic musculoligamentous strain
at the thoracic spine and chronic posttraumatic strain of the left shoulder, and noted that
Ms. Wheeler had tenderness and range of motion abnormalities in the thoracic spine and
left shoulder. Using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993) (“Guides”), Dr. Guberman assessed 4% whole
person impairment (“WPI”) for range of motion abnormalities in the thoracic spine and 2%
WPI based on Table 75 of the Guides, which combined to 6% WPI. This 6% WPI fell
within the permissible range for Thoracic Spine Category II of West Virginia Code of State
Rules § 85-20 table D (Jan. 20, 2006), and required no further adjustment. Dr. Guberman
also assessed 1% WPI for range of motion abnormalities in the left shoulder. In sum, Dr.
Guberman assessed 7% WPI related to Ms. Wheeler’s work-related injury.

Ms. Wheeler underwent a final IME, performed by Victoria M. Langa, M.D., on
April 27, 2022. Dr. Langa opined that the compensable injury had been mischaracterized
as a thoracic strain when Ms. Wheeler’s complaints had always been localized to the left
scapula rather than the thoracic midline. Dr. Langa stated that the injury would be best
characterized as a left periscapular sprain/strain. Using the Guides, Dr. Langa assessed
0.5% impairment for range of motion abnormalities and assigned no impairment based on
Table 75. Dr. Langa placed Ms. Wheeler in Thoracic Spine Category I of the West Virginia
Code of State Rules § 85-20 table D, for a final recommendation of 0% WPI pertaining to
the thoracic spine. Regarding the left shoulder, Dr. Langa assessed 1% WPI for range of
motion abnormalities, which was her final recommendation. By order dated June 7, 2022,
the claim administrator granted Ms. Wheeler a 1% PPD award in accordance with Dr.
Langa’s report. Ms. Wheeler protested and later testified via deposition regarding her
injury and ongoing symptoms.

By order dated August 23, 2023, the Board affirmed the claim administrator’s order
granting Ms. Wheeler a 1% PPD award. The Board discussed the reports of Drs. Guberman
and Langa, noting that the main difference between their opinions was impairment related
to the thoracic spine. Although Dr. Guberman found Ms. Wheeler to have range of motion
abnormalities in the thoracic spine, the Board concluded that Dr. Langa’s finding that Ms.
Wheeler had no ratable impairment for the thoracic spine to be more persuasive.
Specifically, the Board noted that the initial medical records from MedExpress showed that
Ms. Wheeler had normal range of motion in her upper back, and that neither Drs. Prostko,
Franco, Greco, nor Tang indicated any range of motion abnormalities in their various
examinations that were performed in March, June, and July of 2020, respectively. More
recently, the Board noted, Dr. Kramer examined Ms. Wheeler and found no range of
motion abnormalities in the spine. Given this evidence, the Board concluded that Dr.
Langa’s finding of no ratable impairment in the thoracic spine was most consistent with
the weight of the medical evidence and, as such, affirmed the PPD award based on Dr.
Langa’s report. Ms. Wheeler now appeals.

4
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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Ms. Wheeler argues that the Board erred in not awarding her a PPD
award consistent with Dr. Guberman’s report when there was clear evidence of herniated
and bulging discs in her thoracic spine following her work injury. According to Ms.
Wheeler, the Board incorrectly relied on Dr. Langa’s report, which was not performed in
accordance with the Guides. Ms. Wheeler contends that Dr. Langa wrongly found no
impairment based on Table 75 of the Guides when she clearly met the requirements for a
2% impairment rating based on Subheading B of Table 75. Ms. Wheeler further argues that
when applying Rule 20, Dr. Langa incorrectly placed Ms. Wheeler in Category I, which
requires “no significant clinical findings, no observed muscle guarding, no documentable
neurologic impairment, no changes in structural integrity and no other indication of
impairment related to injury or illness; no fractures.” Ms. Wheeler contends that it was
unreasonable for Dr. Langa to place her in Category I when the MRI showed herniated and
bulging thoracic discs. In contrast, Ms. Wheeler argues, Dr. Guberman correctly assigned
her impairment from Table 75 of the Guides and correctly placed her in Category II when
applying Rule 20.

Ms. Wheeler further argues that the Board erred in selectively choosing medical
records that supposedly indicated a normal thoracic range of motion to support its
conclusion. Ms. Wheeler argues that the MedExpress records were observational and did
not measure range of motion with an inclinometer. Moreover, reports from physical
therapy indicated 50% loss of extension in the thoracic spine during range of motion
testing. Although Drs. Prostko, Franco, and Greco did not comment on Ms. Wheeler’s

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thoracic range of motion, she claims they were focused on her shoulder complaints rather
than her thoracic spine. Ms. Wheeler also notes that Dr. Kramer never specifically
commented on her thoracic range of motion and, importantly, did not perform an
examination in accordance with the Guides or provide an impairment rating.

Lastly, Ms. Wheeler argues that her herniated thoracic discs should have been
presumed to have occurred from the compensable injury per Moore v. ICG Tygart Valley,
LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022), and as such, should have warranted a higher
impairment rating. At the very least, she claims, the Board should have resolved the claim
in her favor pursuant to West Virginia Code § 23-4-1g (2003).3

Upon review, we find that Ms. Wheeler failed to demonstrate that the Board’s
findings and conclusions were clearly wrong. The Supreme Court of Appeals of West
Virginia has held that “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of
review are deferential ones 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 in mind, we are
unable to conclude that the Board erred in awarding Ms. Wheeler a 1% PPD award in
accordance with Dr. Langa’s recommendation.

At the outset, we dispense with Ms. Wheeler’s argument that her herniated or
bulging thoracic discs are attributable to the compensable injury and should be included in
consideration of an impairment rating. These herniated/bulging discs were never held
compensable, and the issue of their compensability or relation to the compensable injury
was not before the Board at the time it was considering Ms. Wheeler’s PPD award. Indeed,
not even Dr. Guberman, the evaluator upon whom Ms. Wheeler relies, attributed the
herniated or bulging discs to the compensable injury or considered them in recommending
an impairment rating. As such, we need not perform an analysis of this claim under Moore,
as Ms. Wheeler suggests, as the issue of compensability is not before us.

As noted by the Board, this case comes down to the impairment ratings of Drs.
Langa and Guberman. In reviewing their reports, we simply cannot find that the Board was
wrong in relying on Dr. Langa’s report. While Ms. Wheeler claims that Dr. Langa failed
to comply with the Guides, we find no evidence of noncompliance. Ms. Wheeler’s claims
in this regard are predicated on considering the herniated and bulging discs as part of her
compensable injury, which we decline to do.

3
Pursuant to West Virginia Code § 23-4-1g(a), in part, “[i]f, after weighing all of
the evidence regarding an issue in which a claimant has an interest, there is a finding that
an equal amount of evidentiary weight exists favoring conflicting matters for resolution,
the resolution that is most consistent with the claimant’s position will be adopted.”
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There was no medical evidence submitted to support any range of motion
abnormalities in Ms. Wheeler’s thoracic spine. Although she points to a physical therapy
record which indicates that an extension measurement for Ms. Wheeler’s thoracic spine
showed a 50% loss of range of motion, that measurement was performed shortly after the
injury and the other physical examinations performed after that do not indicate range of
motion abnormalities. Simply put, this sole record indicating some deficits, when viewed
in light of the other evidence of record, does not support Ms. Wheeler’s claims that she has
permanent range of motion deficits resulting from her compensable injury. Based on the
foregoing, we find no error in the Board’s decision to find that Dr. Langa’s opinion that
Ms. Wheeler had no ratable impairment attributable to her thoracic spine was more
persuasive than Dr. Guberman’s opinion.

Lastly, contrary to Ms. Wheeler’s argument, she is not entitled to the matter being
resolved in her favor pursuant to West Virginia Code § 23-4-1g, as the Board did not find
that the reports of Dr. Langa and Dr. Guberman were of equal evidentiary weight. Given
the Board’s findings, we cannot find that it erred in granting Ms. Wheeler a 1% PPD award
in accordance with Dr. Langa’s recommendation. Accordingly, we affirm the Board’s
August 23, 2023, order.

Affirmed.

ISSUED: February 8, 2024

CONCURRED IN BY:

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

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