                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                               November 10, 2014
                                                                            RORY L. PERRY II, CLERK
MARK TENNANT,                                                             SUPREME COURT OF APPEALS

Claimant Below, Petitioner                                                    OF WEST VIRGINIA




vs.)   No. 13-0018 (BOR Appeal Nos. 2047171 & 2047404)
                   (Claim No. 2011040573)

NORTH AMERICAN SERVICES GROUP, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Mark Tennant, by Jonathan C. Bowman, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. North American Services Group,
LLC, by Lucinda L. Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 6, 2012, in
which the Board affirmed June 28, 2012, and April 16, 2012, Orders of the Workers’
Compensation Office of Judges. In its June 28, 2012, Order, the Office of Judges affirmed the
claims administrator’s three September 26, 2011, decisions denying Mr. Tennant’s requests for
Lyrica, physical therapy, and a referral to Christian Sonnefeld, M.D. The Office of Judges also
affirmed the claims administrator’s August 22, 2011, decision denying a request to add
neuropathy and abnormal gait as compensable conditions of the claim. In its April 16, 2012,
Order, the Office of Judges affirmed the claims administrator’s November 30, 2011, decision
denying authorization for the medications Nucynta and Cymbalta. The Office of Judges also
affirmed the claims administrator’s October 4, 2011, decision closing the claim for vocational
rehabilitation benefits. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.


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        Mr. Tennant worked for North American Services Group, LLC. On June 12, 2011, he
burned both of his feet while cleaning up a chemical spill. The claims administrator held the
claim compensable for first degree burns. Mr. Tennant came under the care of Stephen H.
Mascio, M.D., who found that he had lost sensation to light tough at the heels and plantar aspects
of his toes. Dr. Mascio diagnosed Mr. Tennant with neuropathy due to chemical exposure and
requested that condition be added to the claim. Dr. Mascio also requested that abnormal gait be
added as a compensable condition. On August 22, 2011, the claims administrator denied
inclusion of the additional conditions. An electromyography (EMG) test was then performed on
Mr. Tennant’s feet which was essentially normal except mild sensory polyneuropathy secondary
to diabetes could not be ruled out by the study. Stephen R. Timms, M.D., then treated Mr.
Tennant and found that his diabetes mellitus was well controlled. Dr. Timms instead attributed
Mr. Tennant’s current symptoms to the compensable chemical burn. On September 26, 2011, the
claims administrator issued three separate decisions denying requests for Lyrica, physical
therapy, and a referral to Dr. Sonnefeld which were all related to Mr. Tennant’s neuropathy and
abnormal gait. On October 4, 2011, the claims administrator closed the claim for vocational
rehabilitation because Mr. Tennant was not ready to participate in rehabilitation services. Joseph
E. Grady II, M.D., then evaluated Mr. Tennant and found that the etiology of his current foot
pain was uncertain. Dr. Grady also found that Mr. Tennant’s bilateral foot burns had healed. Dr.
Grady suggested that Mr. Tennant’s symptoms could be the result of diabetes. Dr. Grady,
however, believed that he had reached his maximum degree of medical improvement for the
compensable condition. On November 30, 2011, the claims administrator denied Mr. Tennant’s
request for the medications Nucynta and Cymbalta. Jack Riggs, M.D., then evaluated Mr.
Tennant and found that he had mild peripheral neuropathy which he believed was attributable to
diabetes mellitus. On April 16, 2012, the Office of Judges affirmed the claims administrator’s
closure of the claim for vocational rehabilitation and its denial of Nucynta and Cymbalta. On
June 28, 2012, the Office of Judges affirmed the claims administrator’s refusal to add neuropathy
and abnormal gait and its three denials of treatment requests. The Board of Review affirmed both
Orders of the Office of Judges on December 6, 2012, leading Mr. Tennant to appeal.

        In its April 16, 2012, Order, the Office of Judges concluded that Mr. Tennant’s temporary
disability was not attributable to the compensable injury. The Office of Judges also concluded
that the medications Nucynta and Cymbalta related to symptoms that were not covered as part of
the claim. The Office of Judges found that the only compensable condition of the claim was first
degree burns of both feet. Based on Dr. Grady’s report, the Office of Judges determined that he
had reached his maximum degree of medical improvement with respect to this condition. The
Office of Judges determined that Mr. Tennant’s inability to work and need for the requested
medication and rehabilitation were related to the diagnoses of neuropathy and abnormal gait,
which were not compensable conditions of the claim. The Office of Judges noted that the
etiology of these symptoms was not certain.

        In its June 28, 2012, Order, the Office of Judges concluded that the diagnoses of
neuropathy and abnormal gait were not related to the compensable injury. The Office of Judges
further concluded that the requested treatments were related to non-compensable conditions and
therefore, should not be authorized. The Office of Judges based these conclusions on the
opinions of Dr. Grady and Dr. Riggs, who found no evidence of peripheral neuropathy related to
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the compensable injury. The Office of Judges also noted that Dr. Riggs believed that Mr.
Tennant’s symptoms were most likely caused by his diabetes mellitus. The Office of Judges
found that the only evidence supporting Mr. Tennant’s position was the opinion of Dr. Timms,
who did not believe that his symptoms were attributable to diabetes. However, the Office of
Judges found that Dr. Timms’s opinion was not supported by the remainder of the record. The
Board of Review adopted the findings of the Office of Judges and affirmed both of its Orders.

        The decision of the Board of Review was based on a material misstatement and
mischaracterization of the evidentiary record. Mr. Tennant has demonstrated that the diagnoses
of neuropathy and abnormal gait are causally related to the compensable June 12, 2011, injury.
The treatment records from Dr. Mascio show that Mr. Tennant developed neuropathic problems
in his feet immediately following the date of the injury. Dr. Mascio’s records further demonstrate
that these neuropathic problems effected Mr. Tennant’s gait. There is not sufficient evidence in
the record attributing these conditions to a non-compensable cause. The treatment notes from Dr.
Timms show that Mr. Tennant’s diabetes was well controlled and would be unlikely to cause his
ongoing neuropathic and gait problems. Mr. Tennant has also demonstrated that physical
therapy; a referral to Dr. Sonnefeld; and the medications Lyrica, Nucynta, and Cymbalta are
medically related and reasonably required to treat his compensable injury. The claims
administrator’s denial of vocational rehabilitation benefits was not protested by Mr. Tennant on
appeal and will not be disturbed.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to add neuropathy and
abnormal gait as compensable conditions of the claim. The Board of Review is also instructed to
grant authorization for the requested physical therapy, referral, and medications.

                                                                        Reversed and Remanded.


ISSUED: November 10, 2014

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

DISSENTING:
Justice Brent D. Benjamin




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