                                 STATE OF WEST VIRGINIA

                                                                                             FILED
                              SUPREME COURT OF APPEALS                                    March 20, 2014
                                                                                      RORY L. PERRY II, CLERK
                                                                                    SUPREME COURT OF APPEALS
GERI SHANE,                                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)    Nos. 12-0851, 13-0198, & 13-0689

                         (BOR Appeal Nos. 2046720, 2046753, 2047611, & 2048131)
                          (Claim No. 2010119855)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                                 MEMORANDUM DECISION
      Petitioner Geri Shane, by M. Jane Glauser, her attorney, appeals three decisions of the
West Virginia Workers’ Compensation Board of Review.1 Wheeling Hospital, Inc., by Jennifer
B. Hagedorn, its attorney, filed a timely response.

        This appeal arises from three Final Orders of the Board of Review. In its June 17, 2013,
Order, the Board affirmed the January 25, 2013, Order of the Workers’ Compensation Office of
Judges which affirmed the claims administrator’s July 24, 2012, decision denying authorization
for an orthopedic consultation and local injections of DepoMedrol and Xylocaine. In its January
29, 2013, Order, the Board affirmed the August 17, 2012, Order of the Office of Judges, which
affirmed the claims administrator’s May 31, 2012, decision denying an MRI of the brain with
contrast, an EEG, and ten psychiatric sessions. In its June 22, 2012, Order, the Board affirmed
December 15, 2011, and November 29, 2011, Orders of the Office of Judges. In the December
15, 2011, Order, the Office of Judges affirmed the claims administrator’s May 12, 2010, decision
granting Ms. Shane a 0% permanent partial disability award. In the November 29, 2011, Order,
the Office of Judges affirmed the claims administrator’s July 8, 2011, decision rejecting the
addition of cervical strain as a compensable condition of the claim. The Office of Judges also
affirmed the claims administrator’s May 6, 2011, decision denying additional diagnostic testing
and treatment, and rejecting the addition of impingement syndrome and aggravation of AC joint

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  On February 28, 2013, Ms. Shane requested that the Court consolidate appeal Nos. 12-0851 and 13-0198. Upon
consideration the Court granted her motion and consolidated the two appeals. On July 12, 2013, Ms. Shane
requested that the Court further consolidate appeal No. 13-0689 with the prior appeals. On August 15, 2013, the
Court granted Ms. Shane’s request.
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as compensable conditions of the claim. 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. Shane worked as a nursing assistant at Wheeling Hospital. On January 2, 2010, she
was pushing a patient on a cart when she felt a pop in her right shoulder. The claims
administrator held her claim compensable for a right shoulder strain and a thoracic strain.
Following her injury, Ms. Shane sought treatment from Derrick Eddy, M.D., for her shoulder
strain. She also complained of pain in her upper back and neck. But Dr. Eddy found that Ms.
Shane’s account of her symptoms was not consistent. Dr. Eddy also found that an MRI of Ms.
Shane’s shoulder and cervical spine appeared relatively normal. Chris Martin, M.D., then
performed an independent medical evaluation of Ms. Shane. Dr. Martin found that Ms. Shane
had reached the maximum degree of medical improvement and required no additional treatment
for her compensable conditions. Dr. Martin noted several inconsistencies in Ms. Shane’s account
of her injuries, and he was unable to explain Ms. Shane’s current symptoms based on the allowed
conditions. Dr. Martin found that there were no objective signs of abnormalities. Dr. Martin then
recommended a 0% permanent partial disability award for Ms. Shane’s right shoulder and
thoracic injuries based on the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993).

        On May 12, 2010, the claims administrator granted Ms. Shane a 0% permanent partial
disability award based on Dr. Martin’s report. Ms. Shane then came under the care of Kumar
Amin, M.D., who believed that she had developed impingement syndrome and performed
surgery on Ms. Shane’s right shoulder. The surgery was not authorized by the claims
administrator, and on May 6, 2011, the Office of Judges denied a request to reopen the claim for
additional diagnostic testing and treatment. The claims administrator also denied a request to add
impingement syndrome and aggravation of AC joint as compensable conditions of the claim. On
July 8, 2011, the claims administrator also denied a request to add cervical strain as a
compensable condition of the claim. On November 29, 2011, the Office of Judges modified the
claims administrator’s May 5, 2011, decision to reflect that the denial was because the requested
treatment was related to a non-compensable condition. The Office of Judges then affirmed the
claims administrator’s May 6, 2011, and July 8, 2011, decisions. On December 15, 2011, the
Office of Judges also affirmed the May 12, 2010, claims administrator’s decision. The Board of
Review then affirmed both Orders of the Office of Judges on June 22, 2012, leading Ms. Shane
to appeal in Case No. 12-0851.

       Ms. Shane then came under the care of Amrik S. Chattha, M.D., who found that she had
daily headaches as well as mild depression. Dr. Chattha requested an MRI of Ms. Shane’s brain
without contrast and an EEG in order to rule out any structural basis for Ms. Shane’s symptoms.
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Dr. Chattha also requested authorization for ten psychiatric sessions. On May 31, 2012, the
claims administrator denied Dr. Chattha’s request because the treatments were not related to
compensable conditions of the claim. On August 17, 2012, the Office of Judges affirmed the
claims administrator’s decision. The Board of Review then affirmed the Order of the Office of
Judges on January 29, 2013, leading Ms. Shane to appeal in Case No. 13-0198.

        Dr. Chattha also noted that Ms. Shane had ongoing pain in her right shoulder. Dr. Chattha
recommended that Ms. Shane receive a consultation with an orthopedic physician. He further
believed that Ms. Shane could benefit from local injections of DepoMedrol and Xylocaine. Dr.
Chattha related these treatments to Ms. Shane’s periarthritis, frozen shoulder, and ruptured
shoulder ligament. On July 24, 2012, the claims administrator denied Dr. Chattha’s request for
an orthopedic consultation and injections. On January 25, 2013, the Office of Judges affirmed
the claims administrator’s decision. The Board of Review then affirmed the Order of the Office
of Judges on June 17, 2013, leading Ms. Shane to appeal in Case No. 13-0689.

       In its November 29, 2011, Order, the Office of Judges concluded that the cervical
conditions were not part of the January 2, 2010, injury. The Office of Judges found that a
preponderance of the evidence supported denying the additional components because there were
no objective findings of cervical impairment. The Office of Judges pointed out that Dr. Martin
found that Ms. Shane had sustained a minor injury and that the MRI taken of her cervical spine
appeared to be normal. The Office of Judges also concluded that the requested treatment for Ms.
Shane’s cervical condition was unrelated to her compensable shoulder strain. The Office of
Judges found that the requested treatment and testing were related to Ms. Shane’s cervical
problems. The Office of Judges found that Dr. Martin believed that Ms. Shane had reached the
maximum degree of medical improvement and would not derive any benefit from further
treatment of her shoulder.

        In its December 15, 2011, Order, the Office of Judges concluded that Ms. Shane had no
impairment for her compensable shoulder strain. The Office of Judges pointed out that Dr.
Martin had found no objective abnormalities in his testing or physical examination of Ms. Shane.
The Office of Judges found Dr. Martin had recommended no permanent partial disability award
based on the American Medical Association’s Guides. The Office of Judges found that Ms.
Shane did not submit any evidence of greater impairment but merely claimed that Dr. Martin’s
assessment was premature. The Office of Judges found Ms. Shane had reached the maximum
degree of medical improvement with respect to her compensable injury. In its June 22, 2012,
Order, the Board of Review adopted the findings of the Office of Judges and affirmed both
Orders.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges in Case No. 12-0851. Ms. Shane has not demonstrated that the requested additional
conditions are causally related to her compensable injury. There is no objective evidence in the
record showing that Ms. Shane sustained a neck injury in the course of and resulting from her
employment and Ms. Shane’s subjective complaints are not sufficiently consistent to justify
adding the conditions as compensable components of the claim. Ms. Shane has also not shown
that the requested treatments and testing are medically related and reasonably necessary to treat
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her compensable injury. The evidence in the record shows that the requested treatments are
related to Ms. Shane’s cervical spine and not any compensable condition of this claim. Finally,
Ms. Shane has not shown that she sustained any permanent impairment relating to her
compensable injury. The only evidence of permanent impairment in the record is the report of
Dr. Martin who recommended a 0% permanent partial disability award. There is no evidence in
the record showing that Dr. Martin’s report was not reliable or that the Office of Judges violated
its discretion in relying on it.

       In its August 17, 2012, Order, the Office of Judges concluded that an MRI of the brain
with contrast, an EEG, and ten psychiatric sessions were not medically related and reasonably
required to treat Ms. Shane’s compensable conditions. The Office of Judges found that Ms.
Shane sustained a compensable injury to her right shoulder and that the allowed conditions of the
claim were a sprain of the right shoulder and a thoracic sprain. The Office of Judges found that
the requested treatments were for chronic headaches and depression, which were not
compensable conditions of the claim. In its January 29, 2013, Order, the Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges in Case No. 13-0198. Ms. Shane has not demonstrated that the requested diagnostic tests
and psychiatric sessions are medically related and reasonably required to treat her compensable
injury. Ms. Shane has not presented any evidence that the requested testing and treatment are
related to a condition of the claim. The only evidence supporting Ms. Shane’s request is the
opinion of Dr. Chattha. However, Dr. Chattha did not relate the request for an MRI, EEG, or
psychiatric sessions to a compensable condition. Instead, he related the request to Ms. Shane’s
ongoing headaches and depression.

       In its January 25, 2013, Order, the Office of Judges concluded that a referral to an
orthopedic specialist and authorization for injections were not medically related and reasonably
required medical treatment for Ms. Shane’s compensable injury. The Office of Judges found that
Ms. Shane sustained a minor injury which should have resolved. The Office of Judges noted that
Dr. Martin could not find any objective abnormalities to support her subjective complaints. The
Office of Judges further found that Ms. Shane’s credibility was weakened by the inconsistencies
in her physical examinations. In its June 17, 2013, decision, the Board of Review adopted the
findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges in Case No. 13-0689. Ms. Shane has not demonstrated that the requested orthopedic
referral and injections are medically related and reasonably required to treat her compensable
injury. Ms. Shane received a right shoulder strain which Dr. Martin found had resolved by April
26, 2010. Dr. Martin also found that Ms. Shane would not require any additional treatment
related to her compensable injury. She subsequently underwent arthroscopic surgery on the right
shoulder which was not authorized under this claim. The evidence Ms. Shane has presented is
insufficient to show that her current symptoms and need for the requested referral and injections
are related to her compensable injury. Although Dr. Chattha requested authorization for the

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referral and injections under this claim, he did not provide any medical evidence to relate the
request to the compensable injury.

        For the foregoing reasons, we find that the decisions of the Board of Review are not in
clear violation of any constitutional or statutory provision, nor are they clearly the result of
erroneous conclusions of law, nor are they based upon a material misstatement or
mischaracterization of the evidentiary record. Therefore, the decisions of the Board of Review
are affirmed.

                                                                                      Affirmed.

ISSUED: March 20, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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