                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 2, 2017
SAMUEL A. ROBINSON,                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-0897 (BOR Appeal No. 2051190)
                   (Claim No. 2000045824)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

EASTERN ASSOCIATED COAL, LLC,
Employer/Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Samuel A. Robinson, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. West Virginia Office of the
Insurance Commissioner by Henry C. Bowen, its attorney, filed a timely response.

       The issue on appeal is whether bilateral sacroiliac joint injections should be authorized.
The claims administrator denied the request for bilateral sacroiliac joint injections on February
11, 2015. The Office of Judges affirmed the claims administrator’s decision on March 3, 2016.
The Board of Review affirmed the Order of the Office of Judges on August 24, 2016. 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.

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        Mr. Robinson, a brakeman for Eastern Associated Coal, LLC, hurt his lower back while
lifting an object at work on March 5, 2000. Mr. Robinson was treated by Dr. Weisman who
diagnosed a lumbar sprain, overextension, and strenuous repetitive movements. He was advised
to be off work for a week and to follow up with another physician. The report stated that his
injury aggravated a pre-existing back injury. On April 11, 2000, the claims administrator held the
claim compensable for a lumbar sprain. On August 28, 2000, the claim was held compensable
for reaction to spinal or lumbar puncture, a lumbosacral sprain, and a lumbar sprain.

       George Orphanos, M.D., performed an independent medical evaluation August 15, 2001.
In Dr. Orphanos’s opinion, Mr. Robinson sustained a musculoligamentous type injury involving
the lumbar spine as a result of the work-related injury superimposed on pre-existing
spondylolysis at L5 level with no evidence of spondylolisthesis. Dr. Orphanos noted that Mr.
Robinson had preexisting spondylolysis at the L5 level and also noted degenerative bulging discs
at L4-5 and L5-S1. Mr. Robinson was found to be at maximum medical improvement and was
found to have 12% whole person impairment.

        On January 25, 2006, the claims administrator held that the approved diagnoses were
depressive disorder, major depressive disorder, lumbosacral sprain, lumbar sprain, reaction to
spinal/lumbar puncture, unspecified neuralgia neuritis/radiculitis, other/unspecified disc disorder
of lumbar region, and lumbosacral neuritis or radiculitis. The thoracic spine was not a
compensable diagnosis in the claim.

       A July 29, 2009, report authored by Rajesh Patel, M.D., stated that Mr. Robinson would
benefit from decompression at L4-5 but not a fusion. John Schmidt, M.D., examined Mr.
Robinson on December 7, 2009, and suggested a modification to his spinal cord stimulator for
the pain. He suggested a removal of the spinal cord stimulator followed by replacement with a
paddle type electrode and generator. Dr. Schmidt noted there was an approximately 80% chance
of meaningful improvement in Mr. Robinson’s pain with a dorsal column paddle type spinal cord
stimulator electrode and generator. Dr. Schmidt then requested authorization for a dorsal
laminectomy for placement of a spinal cord stimulator.

       A February 28, 2011, letter from Wassim Saikali, M.D., stated that the nerve test showed
mild left L5/S1 radiculopathy and mild right L5/S1 radiculopathy. There was no evidence of
severe polyneuropathy and medications were suggested. Timothy Deer, M.D., completed a report
on November 26, 2012, stating that a new CT scan was needed of the lumbar spine as Mr.
Robinson was having progressive left leg weakness with increased lower back pain. Dr. Deer
opined that this was attributable to the compensable work injury. He requested a new CT scan of
the lumbar spine and referral to Neurological Associates for a second opinion.

       Milton Klein, M.D., issued a report on February 12, 2013, stating that an independent
medical evaluation showed that Mr. Robinson was at maximum medical improvement. The
evaluation did not recommend additional treatment to include physical therapy, injections, or
medications. The report also stated that the most recent September 19, 2012, physical
examination of Mr. Robinson did not medically support the requested lumbar spine CT scan as
there was no documented change in neurological status. The requested sacroiliac joint injections
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was also not medically supported because the diagnostic tests, including Gaenslen’s and
Patrick’s tests, were negative.

        On February 12, 2013, Mr. Robinson’s request for a CT and two sacroiliac joint
injections was denied. The denial was based upon a physician review Dr. Klein’s physician
review. On August 9, 2013, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation. Dr. Mukkamala noted that Mr. Robinson complained mostly of pain in the legs and
feet. He suggested that the low back pain was very well controlled with the spinal cord
stimulator. He found Mr. Robinson to be at maximum medical improvement and opined that all
he requires is a home exercise program. The claims administrator denied sacroiliac joint
injections on September 6, 2013. A nerve conduction study report completed on October 28,
2013, stated that it was an abnormal study. There was electrophysiological evidence for an active
S1 radiculopathy on the left. There was no electrophysiological evidence for peripheral
polyneuropathy.

        In separate litigation in this claim from this appeal, the Office of Judges issued a decision
on October 9, 2014, affirming, among other things, the claims administrator’s denial of payment
for sacroiliac joint injections.1

         On November 14, 2014, Mr. Robinson testified that after the accident he had severe pain
in his lower back down both legs as well as burning pain in both of his feet. He stated that he had
none of these problems prior to this injury. He testified that he has a spinal cord stimulator which
helps with the back pain, but does not help with the leg and feet pain. Mr. Robinson testified that
he was prescribed Lyrica for the burning in his feet, and he was unable to function without it.
Mr. Robinson testified regarding his medical providers and indicated that he was checked for
neuropathy which was negative. He stated that Dr. Deer would like for him to have surgery to
install a larger implant or paddle stimulator.

        On January 2, 2015, Mr. Robinson was seen by Dr. Deer. Sacroiliac joint inflammation
was suspected due to antalgic gait and authorization was requested for bilateral sacroiliac joint
injections. The claims administrator denied the request on February 11, 2015. On May 17, 2015,
Dr. Deer completed a statement that bilateral sacroiliac joint injections should be authorized
because they are medically reasonable and necessary to treat Mr. Robinson’s gait disturbances.

        On September 22, 2015, Mr. Robinson testified in a deposition that he had one prior back
injury around 1998 while working for the same employer. He also testified regarding the low
back injury at issue stating that he had physical therapy, medications, and shots given by Dr.
Shamblin. Mr. Robinson said that Dr. Deer is currently his primary physician who treats him for
the leg and back pain he experiences. He stated that he has a pain stimulator in each hip, both of
which have required revisions because his pain level is so high. He also had a trial of a morphine
pump. Mr. Robinson asserted that his pain level has gone up since the stimulator was last revised
in 2013. He had injections in his lower back which helped the pain in his feet quite a bit. He

1
  Ms. Robinson appealed this decision to the Board of Review, but then withdrew it on December 8, 2014, thereby
making the Office of Judges’ decision final.
                                                        3
testified that all of the treatment requested by Dr. Deer has been denied, and he feels the lack of
treatment has caused his pain level to increase.

        The Office of Judges determined that the request for sacroiliac joint injections was not
medically related and reasonably required medical treatment in its March 3, 2016, Order. The
Office of Judges noted that Dr. Deer requested the injections because sacroiliac joint
inflammation was suspected. In the report, he diagnosed Mr. Robinson with sacroilitis and
lumbar radiculopathy. The Office of Judges noted that sacroilitis was not an accepted diagnosis
in the claim. The Office of Judges also found that Mr. Robinson was at maximum medical
improvement. Further, the Office of Judges found that it had previously denied the request for
sacroiliac joint injections in an October 9, 2014, Order. Mr. Robinson subsequently withdrew his
appeal of this Order. The Office of Judges also noted that the injections were far beyond the
guidelines set forth in West Virginia Code of State Rules § 85-20 (2006). Last, the Office of
Judges found that Mr. Robinson had extensive pre-existing degeneration of the spine. The Board
of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its decision on August 24, 2016.

       After review, we agree with the decision of the Office of Judges as affirmed by the Board
of Review. A preponderance of the evidence shows that sacroiliac joint injections were not
medically related to the compensable conditions or reasonably required pursuant to West
Virginia Code of State Rules § 85-20 guidelines. Mr. Robinson litigated the denial of this
treatment before the Office of Judges in an earlier protest that is now final. Therefore, the
evidence supports the conclusion that the injections were not approved because sacroilitis is not a
compensable condition in the claim and Mr. Robinson had previously reached maximum medical
improvement for the compensable condition.

        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: August 2, 2017


CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

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Dissenting:
Justice Margaret L. Workman




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