                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 3, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
STACIE L. ERWIN,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0311 (BOR Appeal No. 2048772)
                    (Claim No. 950029078)


CHARLESTON LINCOLN MERCURY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Stacie L. Erwin, by Patrick Kevin Maroney, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated February 27, 2014, in
which the Board affirmed an August 21, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 6, 2012,
decision denying Ms. Erwin’s request for a CT scan of the lumbar spine with dye and CT scan of
the thoracic spine without and with dye. The Office of Judges also affirmed the claims
administrator’s July 26, 2012, decision denying Ms. Erwin’s request for cervical facet injections
with fluoroscopy. 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. Erwin worked for Charleston Lincoln Mercury, Inc., as a sales person. On
December 28, 1994, she was rear-ended when stopping at a stop light. The claim was held



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compensable.1 Marsha Lee Bailey, M.D., listed the following as approved diagnoses: 846.0
lumbosacral strain, 847.1 thoracic strain, 847.0 cervical strain, 784.0 cephalgia, and 724.8
lumbar thoracic facet syndrome, but Ms. Erwin listed the following codes as approved diagnoses
721.41, 721.42, 722.51, 722.11, 722.10, and 721.03. However, an E-Comp Claimant Eligibility
Information statement from BrickStreet Insurance listed the following as accepted diagnoses:
thoracic spondylosis without myelopathy, lumbosacral spondylosis, unspecified reflex
sympathetic dystrophy, reflex sympathetic dystrophy in the upper limb, causalgia in the lower
limb, reflex sympathetic dystrophy in the lower limb, sprain/strain of knee/leg unspecified, and
sprain/strain of lumbosacral. On January 26, 2001, Dr. Bailey examined Ms. Erwin and
concluded that she has long ago reached maximum medical improvement. Dr. Bailey also found
that no further treatment for some time has changed her symptoms or increased her functionality.
On May 6, 2013, Jerry Scott, M.D., examined Ms. Erwin and concluded that there was no
indication for a CT scan in any region of the spine. Dr. Scott found the most striking aspect of
this claim is the amount of treatment Ms. Erwin has had with very little in the way of objective
findings and pathology.

        On February 8, 2012, Wilfrido Tolentino, PAC, requested a CT scan of the lumbar spine
with contrast and a CT scan of the thoracic spine without and with contrast be authorized with an
indicated diagnosis for lumbosacral neuritis. On March 6, 2012, the claims administrator denied
the request for a CT scan of the lumbar spine with dye and CT scan of the thoracic spine without
and with dye for lack of information. The claims administrator requested additional information
regarding the medical necessity of the diagnostic testing on February 29, 2012, and March 1,
2012, and as of March 6, 2012, no additional information had been received.

       On July 23, 2012, Christopher Kim, M.D., requested cervical facet injections with
fluoroscopy for the diagnosis cervicalgia. Dr. Scott found no indication for cervical injection.
The claims administrator denied the request for cervical facet injections with fluoroscopy based
on the MRI on November 13, 1997, that was normal, a cervical CT scan of December 5, 2005,
that was normal, the cervical x-ray on May 3, 2012, that showed mild degenerative changes, and
Dr. Kim’s office notes dated July 17, 2012, that did not have objective medical findings to
support the medical necessity of the requested injections.

        The Office of Judges affirmed both of the claims administrator’s decisions and found Ms.
Erwin has failed to show by a preponderance of the evidence that the requested treatment is for
an injury received in the course of and resulting from employment. The Board of Review
affirmed the Order of the Office of Judges. On appeal, Ms. Erwin disagrees and asserts that she
clearly received an injury in the course of and as a result of her employment and that she has
received treatment since the injury to her neck, mid-back, and lumbar spine. Ms. Erwin further
argues that her medical history regarding the injuries has been consistent in that she continues to
have chronic pain from the work injury and that the medical treatment for this injury has been
medically reasonable and necessary to treat her ongoing pain.

1
 The claims administrator’s decision holding the claim compensable is not in the record, and
none of the Orders or decisions in the record indicate what conditions have been held
compensable.
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        The Office of Judges found the denial of the CT scans to be supported by the
preponderance of the evidence. It stated that Dr. Tolentino’s request for the CT scans listed the
reason as lumbosacral neuritis. The Office of Judges concluded that a review of the record did
not establish that lumbosacral neuritis has been held compensable. The Office of Judges further
found the denial of the cervical facet injections to be supported by the preponderance of the
evidence. It stated that Dr. Kim’s request for the cervical facet injections listed the reason as
cervicalgia. The Office of Judges concluded that the record does not establish that cervicalgia
has been held to be a compensable condition of the instant claim and therefore found the
treatment is not for an injury or disease received in the course of and resulting from employment.

        The Board of Review agreed with the findings of the Office of Judges. This Court agrees
with the Order of the Board of Review. Lumbosacral neuritis and cervicalgia were not listed as
allowed diagnoses on the E-Comp Claimant Eligibility Information screen, which is believed to
depict accepted diagnoses for the instant claim, nor were these conditions listed as allowed
diagnoses by Elite Physicians, Ltd., in its March 21, 2008, report or by Dr. Bailey in her January
26, 2001, report. Additionally, Ms. Erwin did not even list lumbosacral neuritis and cervicalgia
in her brief as allowed conditions. There is no Order or decision in the record that lists the
compensable conditions for this claim. Therefore, based on the record this Court finds the Board
of Review properly affirmed the Office of Judges’ denial of CT scans because the treatment was
for the non-compensable condition of lumbosacral neuritis and also properly affirmed the Office
of Judges’ denial of cervical facet injections because the treatment was for the non-compensable
condition of cervicalgia.

        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 3, 2015

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




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