                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
JANICE L. PALICKA,                                                               July 24, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1462 (BOR Appeal No. 2045702)
                    (Claim No. 950031088)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Janice L. Palicka, by M. Jane Glauser, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Wheeling Hospital, Inc., by Jennifer
Hagedorn, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 30, 2011, in
which the Board affirmed a February 15, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 13,
2010, order. 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.

        On December 23, 1994, Janice L. Palicka was employed as a licensed practical nurse for
Wheeling Hospital, Inc. when she sustained pain in her mid-back while transferring a patient.
Her claim was held compensable for thoracic sprain, neck sprain, sprain/strain of the back,
sacroiliac (ligamentous) sprain and lumbar sprain. A disc herniation in Ms. Palicka’s spine was
surgically removed and fused with no further treatment available for her cervical spine. Ms.
Palicka continued to receive follow up care including pain medications and diagnostic testing for
pain. On September 10, 2010, Dr. Chalifoux requested a TENS unit and necessary supplies for
six months. The claims administrator denied authorization for the TENS unit and supplies. Ms.
Palicka appealed.

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        The Office of Judges found that the preponderance of evidence showed that a TENS unit
and the necessary supplies were not medically related or reasonably required for the treatment of
Ms. Palicka’s compensable injury. The Office of Judges noted that this claim was held
compensable for thoracic sprain, neck sprain, sprain/strain of the back, sacroiliac (ligamentous)
sprain and lumbar sprain. In 2000, Dr. Doyle attributed Ms. Palicka’s herniated disc mainly to
non-work related conditions including degenerative arthritis and degenerative disc disease of the
spine. The Office of Judges found that the evidence submitted was insufficient to establish TENS
unit treatment in excess of that provided in West Virginia Code of State Rules § 85-20-4.1,
therefore, the TENS unit and supplies were deemed not reasonably required medical treatment.
The Board of Review reached the same reasoned conclusion in its decision of September 30,
2011. We agree with the reasoning and 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.



                                                                                        Affirmed.

ISSUED: July 24, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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