                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

LYNN R. MOSKAL,                                                                         FILED
Claimant Below, Petitioner                                                         February 13, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.)   No. 19-0214 (BOR Appeal No. 2053380)                                          OF WEST VIRGINIA
                   (Claim No. 940022552)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

CITY HOSPITAL, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Lynn R. Moskal, by Counsel Ronald M. Harman, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). The West Virginia
Office of the Insurance Commissioner, by Counsel Melissa M. Stickler, filed a timely response.

        The issue on appeal is medical benefits. The claims administrator denied authorization for
the medication Tramadol on August 30, 2017. On February 20, 2018, the claims administrator
denied authorization for an adjustable bed. The Office of Judges reversed the decisions in its
September 7, 2018, Order and granted the requested medical benefits. The Order was reversed, in
part, by the Board of Review on February 6, 2019. The Board of Review affirmed the approval of
the adjustable bed but denied authorization of the medication Tramadol.

        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. 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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        Ms. Moskal, a registered nurse, injured her lower back in the course of her employment on
October 24, 1993, while transferring a patient from a bed to a chair. She underwent numerous
surgeries for the injury from 1994 to 1999 including a thoracotomy, discectomy, and fusion; an
anterior discectomy and interbody fusion; surgery to remove implanted hardware; and an
exploration of fusion and laminectomy.

       Alex Ambroz, M.D., performed an independent medical evaluation on February 14, 2002,
in which he found that Ms. Moskal had reached maximum medical improvement. He opined that
she has chronic, severe low back pain and numbness in both legs. Ms. Moskal was on long-term
opioid medication, including a Fentanyl patch. Dr. Ambroz noted several prior lower back injuries
and surgeries. He assessed 28% impairment. Dr. Ambroz concluded that Ms. Moskal was
permanently and totally disabled, mostly as a result of her compensable injury.

        The claims administrator authorized the medications Tramadol and Ambien on March 7,
2005. On May 6, 2006, it authorized scar revision for prior back surgeries due to the compensable
injury. On July 10, 2006; March 26, 2007; and May 18, 2012, the claims administrator authorized
the mediations Fentanyl and Tramadol, among others.

       Charles Lancelotta, M.D., performed a medical evaluation on November 4, 2014, in which
he noted that Ms. Moskal was very symptomatic and reported that she is in constant pain. She also
reported numbness and tingling in her legs with foot drop. She refused any further surgeries. Dr.
Lancelotta found that despite extensive treatment, Ms. Moskal’s back pain was never significantly
reduced. He opined that her symptoms were currently controlled by medication and that such
treatment was reasonable and related to the compensable injury.

        Treatment notes by Neil Crowe, M.D., indicate Ms. Moskal was diagnosed with the
following: thoracic or lumbar spondylosis with myelopathy, failed back surgical syndrome,
lumbago, lumbar spinal stenosis, degeneration of lumbar/lumbosacral intervertebral disc, and post-
laminectomy syndrome of the lumbar region. On March 24, 2016, Dr. Crowe noted that she was
experiencing increased pain in her legs. The pain was making it difficult for her to sleep. He also
noted that she suffers from chronic obstructive sleep apnea as well as central sleep apnea. He stated
that sleep apnea is common in patients with chronic opioid use. On August 26, 2015, Ms. Moskal
reported that her leg pain kept her up at night. On September 29, 2016, Dr. Crowe noted that Ms.
Moskal had severe pain in the T8 distribution. She was on numerous pain medications, including
Fentanyl, Oxycodone, and Tramadol. The claims administrator authorized the use of Fentanyl,
Oxycodone, and Tramadol on April 25, 2016.

        Benjamin Krepps, D.O., performed an independent medical evaluation on March 22, 2017,
in which he noted that Ms. Moskal had decreased sensation at L3-4 and weakness with left hip
flexion. She also had reduced patella and Achilles reflexes on both sides. Dr. Krepps diagnosed
thoracic intervertebral disc disorder with myelopathy, post-laminectomy syndrome, lumbar sprain,
thoracic sprain, cauda equina syndrome, and chronic pain syndrome. Dr. Krepps opined that Ms.
Moskal’s symptoms are the result of her compensable injury and recommended long-term pain
management. Dr. Krepps noted that her treating physician, Dr. Crowe, recommended she see a
pain specialist multiple times but she had been unable to find one. Dr. Krepps stated that Ms.
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Moskal was not being provided the usual protocols for pain management patients, including drug
screenings, a controlled substance agreement, attempts to wean and taper, and a long-term
prognosis. However, Dr. Krepps concluded that her current medications were reasonable and
causally related to the compensable injury.

       On March 22, 2017, the Office of Judges reversed a June 14, 2016, claims administrator
decision and added central sleep apnea to the claim. In that decision, the Office of Judges noted
that Ms. Moskal had received a permanent total disability award and was on an opioid regiment to
manage her pain.

         In a May 18, 2017, treatment note, Dr. Crowe stated that after his evaluation, Dr. Krepps
recommended an intrathecal pump to treat Ms. Moskal’s pain. However, Dr. Crowe noted that a
pump was considered in the past but would not work because her pain was bilateral. Thus, she
would need bilateral catheters. On June 16, 2017, Dr. Crowe noted that Ms. Moskal reported she
is willing to undergo urine drug screening. Dr. Crowe noted that he was asked to provide a weaning
plan to the claims administrator; however, he received no indication from the independent medical
evaluations that Ms. Moskal needed to be weaned from her opioid medications. She expressed
interest in weaning off of Fentanyl. Dr. Crowe noted that she had tried weaning from Fentanyl in
the past but her pain became so severe she was unable to perform her activities of daily living.

        On June 20, 2017, the claims administrator authorized Fentanyl, Oxycodone, and
Tramadol. In a June 28, 2017, letter to the claims administrator, Dr. Crowe stated that Ms. Moskal
agreed to taper her use of Fentanyl as much as possible. The claims administrator approved a
referral to a pain management specialist on August 30, 2017. In a separate decision that day, the
claims administrator also denied authorization for the medication Tramadol.

        In a September 29, 2017, treatment note, Dr. Crowe indicated Ms. Moskal was still having
difficulty sleeping so he recommended a specialized bed. She again needed a refill of Tramadol.
Dr. Crowe noted that she was still waiting to see a pain medicine specialist and refilled the
medication to avoid serious side-effects caused by suddenly stopping the medication.

        An October 27, 2017, treatment note by Waheed Backsh, M.D., indicates he is a pain
management specialist. He determined that Ms. Moskal’s symptoms are severe and interfere with
her ability to sleep. Dr. Backsh diagnosed failed back syndrome, thoracic spine pain, thoracic
osteoarthritis, lower back pain, lumbar spondylosis, and chronic pain syndrome. Dr. Backsh stated
that his treatment options were limited since Ms. Moskal was already on a large dose of Fentanyl.
He stated that the only option he could offer would be a spinal cord stimulator.

       On January 2, 2018, Dr. Crowe noted that Ms. Moskal attempted to taper her Fentanyl use
but was in intolerable pain by the third day. On January 23, 2018, Dr. Crowe noted that the claims
administrator had not authorized refills of the medications Fentanyl or Tramadol since October.
He requested authorization of the medications until Dr. Backsh could take over her pain
management. He also requested authorization for a queen size adjustable bed.


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        In a letter to the claims administrator on January 29, 2018, Dr. Crowe stated that Ms.
Moskal has failed back syndrome and was prescribed a spinal cord stimulator. She had not yet
gotten the device because the procedure requires she undergo a psychological evaluation which
had not yet been scheduled. Ms. Moskal saw Dr. Backsh on February 9, 2018. Dr. Backsh noted
that he saw no signs of odd behavior, addiction, or adverse side effects due to Ms. Moskal’s pain
regiment. Dr. Backsh stated that he was taking over her pain medicine prescriptions and again
recommended a spinal cord stimulator trial.

       The claims administrator denied authorization for an adjustable bed on February 20, 2018.
Dr. Crowe completed a Medical Statement form on March 20, 2018, in which he requested
authorization for a queen size adjustable bed for Ms. Moskal’s back pain.

        Ms. Moskal returned to Dr. Backsh on March 30, 2018 and reported that her pain was a ten
out of ten. She had yet to undergo the psychological evaluation for the spinal cord stimulator and
was in extreme pain. On April 13, 2018, Ms. Moskal reported that she had no more Fentanyl and
very few Oxycodone and Tramadol. Dr. Backsh noted that her opioid medications provided
adequate pain relief and refilled them. He again noted no indication of bad behavior, addiction, or
side effects.

        In its September 7, 2018, Order, the Office of Judges reversed the August 30, 2017, and
February 20, 2018, claims administrator decisions and authorized the medication Tramadol as well
as an adjustable bed. With respect to the medication Tramadol, the Office of Judges found that
Ms. Moskal has been diagnosed with post-laminectomy syndrome, failed back syndrome, chronic
low back pain, and cauda equina syndrome. She has also been granted a permanent total disability
award. The Office of Judges noted that Ms. Moskal was on an authorized opioid pain regiment for
several years. Dr. Krepps evaluated her and found that while she was not being treated by a pain
specialist as required, her symptoms were related to the compensable injury and her prior receipt
of pain medications were reasonable and related to the compensable injury. Further, the Office of
Judges noted that Ms. Moskal was seen by Dr. Backsh, a pain medicine specialist, who took control
of her pain regiment. The Office of Judges concluded that the medical evidence shows the
medication Tramadol treats Ms. Moskal’s chronic back pain, which resulted from her compensable
injury. Therefore, it reversed the claim administrator’s decision and authorized the mediation.

        In regard to the adjustable bed, the Office of Judges determined that a preponderance of
the evidence indicates the bed is reasonable and necessary. Ms. Moskal’s medical records show
numerous complaints of difficulty sleeping, and Dr. Crowe described the difficulties in detail
throughout his treatment notes. He opined that an adjustable bed would be reasonable to treat her
low back pain. The Office of Judges determined that Ms. Moskal’s pain in not in dispute. Dr.
Crowe opined that the bed would help the pain, and the medical records support his conclusion.
The Office of Judges therefore reversed the claims administrator’s decision and authorized an
adjustable bed.

        On February 6, 2019, the Board of Review reversed the Office of Judges’ decision insofar
as it authorized the medication Tramadol. The Board of Review concluded that Tramadol is a
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controlled substance and therefore requires certain documentation when prescribed beyond limited
time periods following the initial injury or subsequent surgeries. West Virginia Code of State Rules
§85-20-53. The Board of Review found that the necessary documentation was not submitted and
therefore the medication Tramadol should not be authorized. The Board of Review affirmed the
remainder of the Office of Judges’ decision.

       After review, we find that the Board of Review’s decision is so clearly wrong, in part, that
even when all inferences are resolved in favor of the Board of Review’s findings, reasoning, and
conclusions, there is insufficient support to sustain the decision. As pertains to long-term opioid
use, West Virginia Code of State Rules §85-20-53.4 provides that

       [c]andidates for long – term OMA should:

               a. Have an established diagnosis that is consistent with chronic pain.
               b. Have not responded to nonopioid treatment.
               c. Not be pregnant. Claimants likely to become pregnant during the course
               of treatment must be advised of the risks to the fetus should pregnancy
               occur.
               d. Not be using illegal drugs or abusing alcohol.
               e. Be reliable claimants who are known to the physician and are expected
               to be compliant with the treatment protocol.

West Virginia Code of State Rules §85-20-53.6 provides a list of recommended, but not
mandatory, guidelines, which includes a treatment plan and a thorough medical history. Lastly,
West Virginia Code of State Rules §85-20-53.9 provides that a claimant who has been taking
opioids without signs of improvement must undergo a psychological evaluation.

        Ms. Moskal has met the criteria for long-term opioid use. Her medical records establish
that she suffers from chronic back pain due to her compensable injury and subsequent surgeries.
She has made attempts to taper her use of narcotic pain medication but is unable to do so due to
unbearable pain. Ms. Moskal’s records show no indication of abuse of the medications she has
been prescribed. Further, she has come under the care of a pain medicine specialist, who concurs
with her treating physician that the medication Tramadol is necessary and reasonable treatment.
Ms. Moskal has received a permanent total disability award for her compensable injury and has
undergone numerous medical evaluations by several physicians, all of whom determined that she
has chronic pain and that the medication Tramadol is necessary treatment. The decision of the
Board of Review is therefore reversed insofar as it denied authorization of the medication
Tramadol. The Board of Review’s decision is affirmed insofar as it affirmed the authorization of
an adjustable bed.

       For the foregoing reasons, we affirm the Board of Review’s decision insofar as it
authorized an adjustable bed. We reverse the decision insofar as it denied the medication Tramadol
and remand the case with instructions to authorize the medication.


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                              Affirmed, in part, and Reversed and Remanded, in part.

ISSUED: February 13, 2020


CONCURRED IN BY:

Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice John A. Hutchison

DISSENTING:

Chief Justice Tim Armstead
Justice Evan H. Jenkins




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