                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS                                FILED
                                                                                  June 5, 2013
                                                                             RORY L. PERRY II, CLERK
BRENDA J. BRANDON,                                                         SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1319 (BOR Appeal No. 2045835)
                    (Claim No. 2010119399)

CHARLESTON AREA MEDICAL CENTER, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Brenda J. Brandon, by William B. Gerwig III, her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Charleston Area
Medical Center, Inc., by H. Dill Battle III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 16, 2011, in
which the Board affirmed March 28, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 12, 2010,
decision denying the request to add the diagnosis of brachial neuritis or radiculitis, not otherwise
specified, as compensable and the September 9, 2010, decision denying the request for physical
therapy. 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. Brandon injured her shoulder when she was throwing a bundle of linens into a basket
while working for Charleston Area Medical Center. The claim was held compensable for sprain
of right shoulder and upper arm. On August 12, 2010, the claims administrator denied Ms.
Brandon’s request to add the diagnosis of brachial neuritis or radiculitis, not otherwise specified,
as an additional compensable diagnosis because Dr. Bailey’s independent medical evaluation
indicated that Ms. Brandon’s right upper extremity neurological symptoms are unrelated to her
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occupation. On September 10, 2010, the claims administrator denied Ms. Brandon’s request to
authorize physical therapy three times per week for three weeks because Dr. Bailey’s
independent medical evaluation indicated that Ms. Brandon had reached maximum medical
improvement and the ongoing neurological symptoms were unrelated to the work incident.

        The Office of Judges affirmed the claims administrator’s decision, and held there was no
error in denying the requested additional compensable component and medical benefits. On
appeal, Ms. Brandon disagrees and asserts that her injury was caused by work activities and is
not a preexisting condition which she has proved through her medical evidence. Charleston Area
Medical Center, Inc. maintains that Ms. Brandon failed to demonstrate with reliable and credible
evidence that she sustained brachial neuritis or radiculitis, not otherwise specified, as a result of
the compensable injury or that the physical therapy is reasonably required treatment for the
compensable injury.

       The Office of Judges held that the claims administrator properly denied physical therapy
because Ms. Brandon’s referral for physical therapy was for the diagnosis cervical radiculopathy,
which is not a compensable component of this claim. The Office of Judges reasoned that
physical therapy was not reasonably required medical treatment because Dr. Armbrust stated that
Ms. Brandon did not respond to a trial of physical therapy and Dr. Bailey reported that Ms.
Brandon stated the physical therapy provided no relief of her right arm symptoms.

        The Office of Judges held that the claims administrator’s denial of the addition of
brachial neuritis or radiculitis, not otherwise specified, as a compensable component was proper.
In Dr. Armbrust’s testimony, he testified that he opined Ms. Brandon’s arm weakness was
related to the radicular nerve pain from her neck based on history; however, the Office of Judges
noted that Dr. Armbrust testified on cross-examination that he was not aware that Ms. Brandon
had neck complaints since 2005. The Office of Judges found Dr. Bailey’s independent medical
evaluation to be persuasive. Dr. Bailey noted that Ms. Brandon had complained about neck pain
since at least 2005. Dr. Bailey determined that Ms. Brandon’s neurologic changes in her upper
extremities were longstanding, stating that the amount of muscle atrophy and weakness
identified by both Dr. Lukowski and Dr. Armbrust would have required more than the two and
half months to develop and had most likely been ongoing for several years. Dr. Bailey found that
Ms. Brandon had reached maximum medical improvement, and her simple right shoulder
sprain/strain had long since resolved. Dr. Bailey stated that Ms. Brandon’s ongoing complaints
are a result of her longstanding right upper extremity neurologic/radicular pathology which is
unrelated to this claim. The Office of Judges concluded that the request for the additional
diagnosis of brachial neuritis or radiculitis, not otherwise specified, as a compensable component
and the request for physical therapy should be denied. The Board of Review reached the same
reasoned conclusions in its decision of September 16, 2011. We agree with the reasoning and
conclusions of the Board of Review.

        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.
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                                      Affirmed.

ISSUED: June 5, 2013

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

DISSENTING:
Justice Menis E. Ketchum




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