                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 23, 2016
MARILYN G. COOK,                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 15-0835 (BOR Appeal No. 2050173)
                   (Claim No. 2002048616)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

LOGAN COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Marilyn G. Cook, by Anne L. Wandling, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 29, 2015, in which
the Board reversed and vacated a January 12, 2015, Order of the Workers’ Compensation Office
of Judges. In its Order, the Office of Judges reversed the claims administrator’s July 18, 2014,
decision insofar as it denied authorization of hydrotherapy. The Office of Judges authorized the
therapy and affirmed the decision insofar as it granted authorization of three massage therapy
visits. 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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        Ms. Cook, a teacher, was injured in the course of her employment on March 13, 2002,
when she slipped off of a chair and fell to the pavement. The claim was held compensable for
lumbosacral sprain/strain, elbow contusion, and concussion. In a June 17, 2014, treatment note,
Panos Ignatiadis, M.D., noted that she was still working. She reported headaches, neck pain, and
back pain with radiation into her legs. It was noted that she had been treated with epidural
injections, physical therapy, pain medication, and oral steroids in the past. She reported that she
is constantly in pain. Dr. Ignatiadis noted that an MRI showed evidence of severe degenerative
disc disease at L5-S1 as well as some moderately severe stenosis at L4-5. He assessed severe
stenosis with radiculopathy and degenerative lumbar disc disease, which she has had for twelve
years following the March of 2002 compensable injury. Dr. Ignatiadis opined that surgery should
be a last resort and recommended massage therapy once a week for six weeks and hydrotherapy
two to three times a week for six weeks to lessen her pain.

       On July 17, 2014, Mohamed Fahim, M.D., reviewed the medical history and opined that
the request for massage therapy should be reduced to three visits and the request for
hydrotherapy should be denied. He found that studies have shown that massage can be beneficial
for chronic back pain and that West Virginia Code of State Rules § 85-20-19 (2006)
recommends up to three sessions. He also opined that hydrotherapy was not medically necessary
or appropriate for the compensable injury. He stated that West Virginia Code of State Rules §
85-20 (2006) does not address hydrotherapy; however, the Official Disability Guidelines do not
recommend it. He further stated that there is no published research showing that the treatment
can take the place of other modalities or has any long-term benefit. Based on his opinion, the
claims administrator denied the request for hydrotherapy and granted authorization of three
massage therapy visits on July 18, 2014.

        The Office of Judges reversed the decision insofar as it denied authorization of
hydrotherapy on January 12, 2015. It found that Dr. Ignatiadis’s opinion was entitled to equal
evidentiary weight as that of Dr. Fahim. The Office of Judges noted that West Virginia Code of
State Rules § 85-20 does not address hydrotherapy. It also noted that the claim was only
compensable for a lumbar sprain/strain; however, by an Order of this Court in Cook v. West
Virginia Office of the Insurance Commissioner, No. 12-1378 (April 29, 2014) (memorandum
decision), an L2-3 microdiscectomy was authorized based on Dr. Ignatiadis’s opinion. The
Office of Judges stated that Dr. Ignatiadis opined in this instance that Ms. Cook’s severe stenosis
with radiculopathy and degenerative lumbar disc disease are compensable. The Office of Judges
reasoned that Dr. Fahim, by finding that massage therapy is medically related to the compensable
injury, supports Dr. Ignatiadis’s opinion regarding hydrotherapy. This was because Dr. Ignatiadis
requested hydrotherapy for the same condition as the massage therapy.

        The Board of Review reversed and vacated the Office of Judges’ Order and reinstated the
claims administrator’s decision on July 29, 2015. It found that Ms. Cook asked Dr. Ignatiadis if
hydrotherapy would be beneficial and then he recommended the treatment. Dr. Fahim opined
that three visits of massage therapy would be appropriate treatment but West Virginia Code of
State Rules § 85-20 does not address hydrotherapy, and the Official Disability Guidelines do not
recommend it. He noted that there is no published research supporting the claim that the
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treatment can take the place of other modalities or that it has any long-term benefit. The Board of
Review therefore concluded that Ms. Cook failed to meet her burden of proof to show that the
treatment was medically necessary and reasonably required to treat her compensable injury.

       After review, we agree with the reasoning and conclusions of the Board of Review. Ms.
Cook has shown that she is entitled to massage therapy; however, she failed to prove that
hydrotherapy is necessary and reasonable to treat her compensable injury. Hydrotherapy is not
addressed in West Virginia Code of State Rules § 85-20 and is not recommended by the Official
Disability Guidelines. Additionally, Dr. Fahim noted that there is no research showing that
hydrotherapy has any long term benefits or can take the place of other methods of 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: August 23, 2016

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

DISSENTING:
Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin




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