                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
SHELIA M. BROWN,                                                                   June 8, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0708	 (BOR Appeal No. 2051018)
                   (Claim No. 2013028806)

CAMC TEAYS VALLEY HOSPITAL,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Shelia M. Brown, by Patrick Maroney, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. CAMC Teays Valley Hospital, by H.
Dill Battle III, its attorney, filed a timely response.

        The issue presented in the instant appeal is the denial of a request to add additional
diagnoses as compensable components of Ms. Brown’s claim for workers’ compensation
benefits. On July 22, 2014, the claims administrator denied the request to add displacement of a
lumbar intervertebral disc without myelopathy, thoracic spine pain, sciatica, and displacement of
a cervical intervertebral disc without myelopathy as compensable diagnoses.1 The Office of
Judges affirmed the claims administrator’s decision in its Order dated December 11, 2015. This
appeal arises from the Board of Review’s Final Order dated June 27, 2016, in which the Board
affirmed the Order of the Workers’ Compensation Office of Judges. 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.


1
  Ms. Brown did not appeal the denial of the request to add thoracic pain as a compensable
diagnosis to this Court.
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         Ms. Brown injured her lower back on April 3, 2013, while assisting a coworker in lifting
a large patient during the course of her employment at CAMC Teays Valley Hospital. She
initially sought chiropractic treatment with Tony Erwin, D.C. On April 22, 2013, Ms. Brown and
Dr. Erwin completed a Report of Injury. In the report, Ms. Brown indicated that she injured her
lumbar spine and sciatic nerve while assisting a patient on April 3, 2013. Dr. Erwin listed Ms.
Brown’s diagnoses as a lumbosacral sprain, a lumbar disc displacement, sciatica, and muscle
spasms. A lumbar spine MRI performed on April 29, 2013, revealed a small disc protrusion at
L5-S1. Ms. Brown’s claim for workers’ compensation benefits was held compensable for a
lumbosacral joint ligament sprain on May 8, 2013.

        On August 20, 2013, Ms. Brown was evaluated by neurosurgeon Panos Ignatiadis, M.D.,
amid continued lumbar spine complaints. Dr. Ignatiadis reviewed the April 29, 2013, lumbar
spine MRI and opined that it revealed normal age-related degenerative changes at L3-5. He also
observed a small disc protrusion at L5-S1, which he concluded is insufficient to render Ms.
Brown a surgical candidate. Dr. Ignatiadis further opined that Ms. Brown sustained a lumbar
sprain at the time of injury, and recommended that she undergo a course of physical therapy and
a functional capacity evaluation. On August 27, 2013, Ms. Brown began a course of physical
therapy at Generations Physical Therapy. She was diagnosed with lumbago, muscle spasms,
lumbar radiculopathy, and impaired lumbar range of motion. After experiencing very minimal
improvement, Ms. Brown voluntarily discontinued physical therapy on September 16, 2013.

       Ms. Brown was evaluated by neurosurgeon Robert Crow, M.D., on November 4, 2013.
Dr. Crow diagnosed Ms. Brown with lower back pain, lumbar radiculopathy, lumbar
spondylosis, and disc degeneration/protrusion at L5-S1. Dr. Crow also opined that Ms. Brown is
not a surgical candidate. Following Dr. Crow’s evaluation, an electromyogram was performed
with no evidence of radiculopathy found. Additionally, a repeat lumbar spine MRI performed on
November 12, 2013, revealed significant improvement of the disc protrusion at the L5-S1 level.

        Marsha Lee Bailey, M.D., performed an independent medical evaluation on January 9,
2014. Dr. Bailey noted that Ms. Brown reported a history of constant, radiating lower back pain.
She also noted that Ms. Brown reported falling repeatedly, with a fall in September of 2013
resulting in a left shoulder injury. Dr. Bailey diagnosed chronic lower back pain without true
radiculopathy. Additionally, Dr. Bailey noted that the repeat lumbar spine MRI performed on
November 12, 2013, revealed significant improvement at the L5-S1 level, while an
electromyogram did not reveal any evidence of radiculopathy. Dr. Bailey then opined that the
findings revealed via MRI are not consistent with Ms. Brown’s reported symptoms. She further
opined that Ms. Brown’s history of falling cannot be attributed to the April 3, 2013, injury
because there is no identifiable lumbar spine pathology supportive of a theory that the falls are
related to the April 3, 2013, injury. Likewise, Dr. Bailey opined that any injuries arising from the
falls are not related to the compensable injury. On February 19, 2014, a functional capacity
evaluation was performed, during which Ms. Brown tested at the light physical demand level. It
was noted that Ms. Brown is currently experiencing neck pain in addition to ongoing lower back
pain.


                                                 2
        On May 15, 2014, Dr. Erwin completed a diagnosis update request. He listed Ms.
Brown’s primary diagnosis as a displaced lumbar intervertebral disc and her secondary diagnoses
as thoracic pain, sciatica, and a cervical disc bulge. On July 22, 2014, the claims administrator
denied Dr. Erwin’s request to add a displaced lumbar intervertebral disc without myelopathy,
thoracic pain, sciatica, and displacement of a cervical intervertebral disc without myelopathy as
compensable diagnoses.2 On August 21, 2014, Dr. Erwin authored a letter addressed to the
claims administrator in which he requested authorization for ongoing chiropractic treatment. He
opined that diagnostic imaging has revealed a lumbar disc herniation at L5-S1 and a cervical disc
bulge at C3-4. Dr. Erwin then stated that Ms. Brown has fallen multiple times as a result of
weakness in her left leg.

         Finally, Dr. Bailey testified via deposition on August 11, 2015. She testified that the
diagnosis of displacement of a cervical intervertebral disc made by Dr. Erwin represents a
degenerative finding. Dr. Bailey noted that Ms. Brown’s medical record contains no evidence of
cervical spine complaints during the months following the compensable injury. She further
testified that Ms. Brown did not report experiencing cervical spine and left shoulder pain until
she experienced a fall which occurred well after the compensable injury. Further, Dr. Bailey
opined that she does not believe that the fall during which Ms. Brown injured her left shoulder is
related to the compensable injury. Regarding the diagnosis of a displaced lumbar intervertebral
disc, Dr. Bailey testified that it represents a normal age-related finding. She then testified that
diagnostic imaging reveals that the small disc protrusion at L5-S1 has greatly improved and
opined that Ms. Brown’s medical record does not contain evidence of an acute finding
suggestive of injury-related pathology. Finally, Dr. Bailey testified that Dr. Erwin’s diagnosis of
sciatica is inaccurate because Ms. Brown did not exhibit symptoms associated with the diagnosis
of sciatica during her evaluation.

        In its Order affirming the July 22, 2014, claims administrator’s decision, the Office of
Judges held that Ms. Brown has failed to demonstrate that the additional diagnoses presently at
issue are related to the compensable April 3, 2013, injury. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated June 27, 2016. On appeal,
Ms. Brown asserts that the evidence of record clearly demonstrates that the diagnoses of a
displaced lumbar intervertebral disc, a displaced cervical intervertebral disc, and sciatica should
be added as compensable components of her claim for workers’ compensation benefits.

       Regarding the request to add displacement of an intervertebral disc as a compensable
diagnosis, the Office of Judges noted that the diagnostic imaging of record demonstrates that the
mild L5-S1 disc protrusion revealed via the initial MRI has significantly improved. Additionally,
the Office of Judges took note of Dr. Bailey’s conclusion that the displaced lumbar disc is
degenerative in nature and is unrelated to the compensable injury. Regarding the request to add a
displaced cervical intervertebral disc as a compensable diagnosis, the Office of Judges found that
Ms. Brown did not mention any cervical spine complaints until approximately one year after the
compensable injury. Further, the Office of Judges found that Ms. Brown attributed her cervical
spine complaints to a fall which she related to symptoms arising from the compensable injury.

2
    See supra note 1.
                                                3
However, the Office of Judges found Dr. Bailey’s conclusion that Ms. Brown’s history of falling
is unrelated to the compensable injury to be persuasive and, therefore, concluded that any
injuries arising from the subsequent falls are not compensable. Finally, regarding the request to
add sciatica as a compensable diagnosis, the Office of Judges found that the diagnosis of sciatica
has been ruled out by Dr. Bailey. We agree with the reasoning and conclusions of the Office of
Judges, as affirmed by 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.



                                                                                        Affirmed.

ISSUED: June 8, 2017

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




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