                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 16, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LISA A. KIRK,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1222 (BOR Appeal No. 2049563)
                   (Claim No. 2013017716)

MARRIOTT INTERNATIONAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Lisa A. Kirk, by Patrick K. Maroney, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Marriott International, Inc., by Bradley
A. Crouser, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 29, 2014, in
which the Board affirmed a June 26, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges modified the claims administrator’s May 30, 2013,
decision to hold that a compensable injury to Ms. Kirk’s right shoulder occurred on January 5,
2013. The claims administrator had denied Ms. Kirk’s request for cervical treatment. The Court
has carefully reviewed the records, written arguments, and appendices contained in the briefs,
and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Ms. Kirk worked as a housekeeper for Marriott International, Inc. On January 5, 2013,
she suffered an injury to her right shoulder while changing sheets on a mattress. The next day
Ms. Kirk was treated at HealthPlus Urgent Care Center for a sprain of her right shoulder. The
claims administrator held her claim compensable for a right shoulder condition but excluded the
cervical spine as a compensable condition of the claim. Ms. Kirk then came under the care of

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David E. Ede, M.D., who found that she complained of right shoulder and upper arm pain. Ms.
Kirk also complained that physical therapy had not improved her symptoms.

        On April 10, 2013, an MRI was taken of Ms. Kirk’s cervical spine which revealed
significant degenerative disease at her C3-4 and C4-5 discs. Following this MRI, Dr. Ede
requested that Ms. Kirk be referred to a neurosurgeon for treatment of her cervical spine. On
May 30, 2013, the claims administrator denied Dr. Ede’s treatment request. The claims
administrator stated the denial was based on an evaluation by Prasadarao B. Mukkamala, M.D.,
who found that there was no causal relationship between Ms. Kirk’s cervical condition and her
compensable injury.1 The denial also included language indicating that a compensable injury had
not occurred. Despite this denial, Ms. Kirk underwent a neurosurgical consultation with John D.
Orphanos, M.D., related to her neck, right shoulder, and arm pain. He believed she had a
displaced cervical intervertebral disc and cervical radiculopathy. Dr. Orphanos requested
authorization for a C3-4 and C4-5 anterior cervical discectomy and fusion. Although there is no
indication in the record that the claims administrator granted the requested authorization, Dr.
Orpahnos performed the surgery, and afterwards, Dr. Ede found that her pain had improved.
However, Michael R. Condaras, D.C., evaluated Ms. Kirk and found that her cervical spine
complaints were not related to the compensable injury. He noted that the MRI taken on April 10,
2013, revealed degeneration of the cervical spine. He found that this degeneration developed
over several years and was not related to the compensable injury. On June 26, 2014, the Office of
Judges modified the claims administrator’s decision to show that Ms. Kirk suffered a
compensable injury on January 5, 2013, to her right shoulder. The Board of Review affirmed the
Order of the Office of Judges on October 29, 2014, leading Ms. Kirk to appeal.

        The Office of Judges concluded that, although Ms. Kirk demonstrated that she suffered a
compensable injury to her right shoulder on January 5, 2013, she has not presented sufficient
evidence showing that her current cervical problems for which she requested treatment are
related to the compensable injury. The Office of Judges found that Ms. Kirk had prior cervical
problems, including treatment for cervical disc displacement, dating back to 2011. It also found
that Ms. Kirk had been involved in a motor vehicle accident in 2012, in which she sustained
injuries to her neck. Partly due to the evidence of pre-existing neck problems, the Office of
Judges found that the record was insufficient to determine if the requested treatment for Ms.
Kirk’s cervical spine is related to the compensable injury. The Office of Judges also took note of
Dr. Condaras’s opinion that Ms. Kirk’s current cervical problems were degenerative in nature.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        On appeal, Ms. Kirk argues that she is entitled to have cervical disc herniation added to
the claim. She also requests that this Court authorize treatment for her cervical condition.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Kirk has not demonstrated that the request for cervical spine treatment is medically
related and reasonably required for her compensable injury. Ms. Kirk has not demonstrated that

1
  Dr. Mukkamala’s evaluation was not submitted into the record before the Office of Judges and therefore, cannot be
considered.
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her current cervical symptoms and need for treatment are causally related to the right shoulder
injury she suffered on January 5, 2013. The initial treatment records following the compensable
injury do not indicate that Ms. Kirk complained of neck related symptoms. The records from her
treatment with Dr. Ede also do not include complaints of neck pain. Although the MRI taken on
April 10, 2013, revealed significant cervical spine conditions, Dr. Condaras believed these
conditions were degenerative in nature. The remainder of the record, including the evidence of
Ms. Kirk’s pre-existing cervical problems, sufficiently supports Dr. Condaras’s opinion, and the
Office of Judges was within its discretion in not authorizing the requested cervical treatments.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.


                                                                                        Affirmed.

ISSUED: September 16, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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