                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 3, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
WANNIE R. LUSK,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0289	 (BOR Appeal No. 2048985)
                   (Claim No. 2008047774)

ALPHA NATURAL RESOURCES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Wannie R. Lusk, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. Alpha Natural Resources, Inc., by Robert Busse, its attorney,
filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 27, 2014, in
which the Board affirmed an October 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 21, 2013,
decision denying authorization for epidural steroid injections, lumbar facet injections, and
payment for continued office visits with Francis Saldanha, M.D. 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. Lusk injured himself on June 10, 2008, when he slipped and fell while walking in
mud, and the claim was initially held compensable for a lumbar sprain/strain. On November 20,
2009, the claim was held compensable for a lumbosacral sprain/strain, generalized anxiety
disorder, and recurrent major depressive disorder. Additionally, lumbar radiculitis was added as
a compensable component of the claim on January 11, 2011, while the compensability of lumbar
facet syndrome was specifically denied. On February 24, 2012, Robert McCleary, D.O., Mr.
                                                1
Lusk’s treating physician, noted that Mr. Lusk had benefited from epidural and lumbar facet
injections in the past, and further noted that he is not currently exhibiting symptoms of
radiculopathy. Dr. McCleary subsequently transferred Mr. Lusk’s pain management care to Dr.
Saldanha, who performed the prior pain management injections.

        On March 21, 2013, Dr. Saldanha noted that Mr. Lusk reported an eighty percent
reduction in pain following a treatment plan inclusive of occasional epidural and facet joint
injections, and requested authorization for two additional lumbar epidural injections and two
sessions of lumbar facet joint injections. On April 25, 2013, Rebecca Thaxton, M.D., reviewed
the claim and recommended denying authorization for the requested injections and also
recommended denying authorization for continued office visits with Dr. Saldanha. She noted that
Mr. Lusk’s medical record indicates that he suffers from degenerative joint disease and pre­
existing foraminal stenosis, and opined that the requested injections and continuing office visits
are aimed at treating the progression of degenerative spinal diseases. Further, she noted that the
claims administrator has not currently authorized payment for any medications in the instant
claim. Dr. Saldanha addressed Dr. Thaxton’s recommendations in a letter on May 16, 2013, in
which he opined that the treatment he is providing is aimed solely at treating chronic low back
and leg pain arising from the work-related injury.

        On June 18, 2013, the StreetSelect Grievance Board found that Mr. Lusk has a history of
pre-existing degenerative changes in the lumbar spine and recommended denying payment for
the requested injections and continuing office visits with Dr. Saldanha. On June 21, 2013, the
claims administrator denied the request for authorization of epidural steroid injections, lumbar
facet injections, and payment for continued office visits with Dr. Saldanha. The Office of Judges
affirmed the June 21, 2013, claims administrator’s decision denying authorization for the
requested injections and office visits.

        At the outset, the Office of Judges found that Mr. Lusk suffers from pre-existing
degenerative lumbar spine conditions. The Office of Judges then found that the compensable
diagnosis of radiculitis appears to have resolved based upon the treatment notes contained in the
evidentiary record. The Office of Judges further found that given the amount of time that has
elapsed following the June 10, 2008, injury, it is unlikely that the compensable sprains/strains
continue to require treatment. Additionally, the Office of Judges relied on Dr. Thaxton’s
determination that the requested injections and office visits are aimed at treating degenerative
spinal disease rather than the compensable diagnoses. Finally, the Office of Judges concluded
that the evidence of record demonstrates that the requested injections and office visits will most
likely be utilized to treat conditions other than the compensable components of the claim. The
Board of Review affirmed the reasoning and conclusions of the Office of Judges in its decision
dated February 27, 2014. We agree with the conclusions of 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.

                                                2
                                              Affirmed.

ISSUED: February 3, 2015

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

DISSENTING:
Justice Menis E. Ketchum

Justice Brent D. Benjamin, Disqualified




                                          3
