                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROBERT J. MARRINER, III,                                                      OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1308 (BOR Appeal No. 2049524)
                   (Claim No. 2007224965)

PENNZOIL-QUAKER STATE COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Robert J. Marriner, III, by Patrick K. Maroney, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Pennzoil-Quaker State
Company, by James W. Heslep, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 24, 2014, in
which the Board affirmed a May 29, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 6, 2013,
decision denying authorization for chiropractic treatment three times a week for four weeks and a
referral to a neurologist. 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.

        Mr. Marriner, production line operator for Pennzoil-Quaker State Company, was injured
on February 23, 2007, while pushing, pulling, lifting, and restacking four gallon boxes and oil
pallets. A report from Scott A. Owens, D.C., his treating physician, showed that he diagnosed a
cervical sprain on March 14, 2007. On March 20, 2007, Mr. Marriner had an MRI of his cervical
spine. The impression was unremarkable. On April 10, 2007, Mr. Marriner filled out a report of
injury for his neck.

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        At some point in time Mr. Marriner stopped treating with Dr. Owens and started treating
with Joel D. Siegal, M.D., and Chandler M. Kohli, M.D. Dr. Siegal performed an examination on
May 10, 2007. Dr. Siegal reviewed the March 20, 2007, cervical spine MRI. He interpreted the
MRI to show a left C6-7 disc protrusion. He recommended conservative treatment, which
included a Medrol Dose Pack, Naprosyn 500mg, Robaxin 750mg, and physical therapy. On
August 2, 2007, Mr. Marriner was seen by Dr. Kohli for a follow-up. The arm pain was better
following physical therapy. Mr. Marriner’s main complaint was right sub occipital pain and
discomfort which was reproducible with palpation consistent with occipital neuralgia. Dr. Kohli
recommended home cervical tractions, continued exercise and medication, and perhaps an
occipital nerve block.

        On June 9, 2008, Mr. Marriner underwent a nerve conduction study. The impression was
electrodiagnostic evidence of moderate to severe left carpal tunnel syndrome and mild to
moderate right carpal tunnel syndrome. There was no electrodiagnostic evidence consistent with
a cervical radiculopathy, brachial plexoplasty, or peripheral neuropathy of the left upper limb.
Records dated October 4, 2010, from Prima Health Care, LLC, indicated Mr. Marriner presented
with complaints of neck pain. The doctor diagnosed a strain of the neck and recommended he
continue to take Mobic as needed and return in three months.

       On August 23, 2012, Joseph M. Grady II, M.D., conducted an independent medical
evaluation. Dr. Grady opined that Mr. Marriner was at his maximum degree of medical
improvement and suffered no ratable impairment. Then on March 27, 2013, Mr. Marriner was
seen by Dr. Owens again. Mr. Marriner complained of pain in the neck and constant headaches.
After examination, Dr. Owens determined that his current symptoms were a result of a lack of
treatment. He diagnosed a cervical sprain/strain and a cervical disc bulge. He treated Mr.
Marriner with hydro collator, electric stimulation, and adjustment of the cervical region. He
recommended conservative care. Dr. Owens also submitted an authorization for three
chiropractic treatments three times a week for four weeks, and a referral to a neurologist. On
June 24, 2013, Mr. Marriner underwent another MRI of the cervical spine. The impression was
mild to moderate degenerative disc disease with C5-6 disc protrusion with inferior migration
causing mild to moderate central canal stenosis.

        On August 3, 2013, Ronald J. Fadel, M.D., performed a records review. He reviewed Mr.
Marriner’s treatment to date. Dr. Fadel recognized a three year gap in treatment where Mr.
Marriner worked without restrictions. He noted the accepted diagnosis is cervical sprain, and
opined that discopathy and or neuropathy was not related and does not fall under the umbrella of
the old claim coverage. He explained that the February 23, 2007, injury could not have caused
the pathology seen on the June 24, 2013, MRI because the March 20, 2007, MRI, which was
taken after the compensable injury, was unremarkable. Based upon Dr. Fadel’s report, the claims
administrator denied the August 6, 2013, request Dr. Owens submitted for authorization of three
chiropractic treatments three times a week for four weeks and a referral to a neurologist. Mr.
Marriner protested. On October 30, 2013, Dr. Owens completed a medical statement indicating
that he believed Mr. Marriner’s condition was causally related to a work injury and chiropractic
treatment was reasonable and necessary. On February 4, 2014, Mr. Marriner was deposed. He
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stated that his symptoms have gotten a lot worse since the original injury. Between 2007 and
2009 he saw Dr. Owens three to four times, and he provided treatment for his neck, but could not
set up a treatment program because every authorization request was denied. He had an MRI in
2007 and another in 2013. Dr. Owens referred him to a neurologist who in turn referred him to
the neurosurgeon, Dr. Siegal. Dr. Siegal showed him some exercises he could do and has since
moved out of state. Mr. Marriner stated he would like to continue treatment with Dr. Owens for
chiropractic treatment.

        The Office of Judges determined that Mr. Marriner did not show that physical therapy
was medically related and reasonably required to treat his cervical sprain. The Office of Judges
recognized that Dr. Owens believed chiropractic treatment was reasonable and necessary due to
alignment issues of the cervical spine causing increased pressure on the disc herniation. The
Office of Judges also noted that this finding was consistent with Mr. Marriner’s statements. In
his February 4, 2014, deposition Mr. Marriner testified that his symptoms have gotten a lot worse
since the original injury. The Office of Judges determined that his need for physical therapy was
not related to his cervical sprain suffered on February 23, 2007. After the cervical spine strain,
Mr. Marriner had an MRI on March 20, 2007, which did not reveal any injury. The Office of
Judges agreed with Dr. Fadel, who opined that if Mr. Marriner suffered a cervical disc herniation
that it would have shown up on the 2007 MRI. However, on June 24, 2013, an MRI showed a
disc herniation of the C5-6 level. Because the herniation was the reason for the physical therapy
request and it is not a compensable condition, the Office of Judges denied medical authorization.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the Office of Judges and Board of Review. Mr. Marriner has failed to
show that his physical therapy is medically related or reasonably required to treat his 2007
cervical sprain. Dr. Owens requested physical therapy because of alignment issues of the cervical
spine, which caused increased pressure on his disc herniation. The disc herniation is not related
to the 2007 injury. If it were related to the February 23, 2007, injury then it would have been
visible on the March 20, 2007, MRI. Because the request for physical therapy is predicated on
the treatment of the disc herniation, which is not a compensable condition, the Office of Judges
and Board of Review were not in error for rejecting the treatment.

        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: February 4, 2016


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




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