                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                June 1, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
WILLIAM JOHNSTON,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0360 (BOR Appeal No. 2048752)
                   (Claim No. 2012005152)

PUTNAM PUBLIC SERVICE DISTRICT,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner William Johnston, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Putnam Public Service District, by
Alyssa A. Sloan, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated March 18, 2014, in
which the Board affirmed an August 16, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 8, 2012,
decision denying a request for MRIs of the brain, cervical spine, and thoracic spine; a pain clinic
evaluation for the lumbar spine; and a follow-up appointment with David Weinsweig, 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. Johnston, a waste water treatment operator, was injured in the course of his
employment on August 10, 2011, when he was in a motor vehicle accident. Mr. Johnston was
treated that day at Charleston Area Medical Center where he reported pain in his head, neck, and
mid-back. He was diagnosed with neck and back strain. He returned to Charleston Area Medical
Center on August 12, 2011, with severe pain in his mid-back. At that time, he specifically denied

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pain in his lumbar spine. He was diagnosed with cervical and dorsal spine strains. The claim was
held compensable for cervical and thoracic sprains.

        A September 28, 2011, MRI revealed degenerative changes in the lumbar spine and a
syrinx in the thoracic spine.1 Marsha Bailey, M.D., Mr. Johnston’s treating physician, stated in
her November of 2011 treatment notes that the sprain should have healed by that point as it had
been ten weeks since the compensable injury. She recommended he return to work. On
December 19, 2011, Rebecca Thaxton, M.D., performed a physician review in which she
recommended that the addition of lumbar radiculitis be denied. Dr. Thaxton noted that Mr.
Johnston originally reported neck and mid-back pain but specifically denied lower back pain.
She noted that the lumbar MRI occurred due to the finding of a thoracic syrinx, which was
unrelated to the compensable injury. She also noted that David Caraway, M.D., found
degenerative changes on the MRI. She opined that degenerative changes are not causally
connected to the claim. Therefore, the addition of the lower back to the claim would be outside
of the guidelines found in West Virginia Code of State Rules § 85-20-37.2 (2006). Further, the
treatment notes of Drs. Bailey, Caraway, and Weinsweig do not support the addition of lumbar
radiculitis to the claim.

        The StreetSelect Grievance Board determined on February 3, 2012, that lumbar
radiculitis should not be added to the claim. It found that the compensable conditions in the
claim are cervical and thoracic sprains. Mr. Johnston had no lumbar complaints for the first
month and a half following his compensable injury. Further, Dr. Bailey stated that the lumbar
spine condition is unrelated to the compensable injury. On July 13, 2012, the Board determined
that lumbar sprain/strain and lumbar disc herniation with myelopathy should also not be added to
the claim.

        An independent medical evaluation was performed by Michael DeWitt, D.O., on
February 17, 2012, in which he also determined that Mr. Johnston’s lumbar spine condition is
unrelated to his compensable injury. He found that a review of the medical records shows that
Mr. Johnston did not report lower back pain in his initial emergency room visit or his follow-up
visit two days later. In fact, he specifically denied lower back pain on August 12, 2011. The
claims administrator denied requests to add lumbar radiculitis, lumbar sprain, and lumbar disc
herniation to the claim. Those decisions were subsequently affirmed by the Office of Judges,
Board of Review, and this Court.

        In a June 20, 2012, treatment note, Dr. Weinsweig stated that Mr. Johnston suffers from
chronic pain with radiculopathy and had an annular tear at L4-5 that was temporally related to
the compensable accident. He also had a syrinx in his thoracic spine. Dr. Weinsweig requested
authorization for brain, cervical, and thoracic MRIs, stating that they were absolutely necessary
due to the pre-existing syrinx. The claims administrator denied the request for MRIs as well as a
request for a pain clinic evaluation for the lumbar spine and a follow-up appointment with Dr.
Weinsweig on October 8, 2012.


1
    A syrinx is a cyst in the spinal cord.
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        The Office of Judges affirmed the claims administrator’s decision in its August 16, 2013,
Order. It found that the claim is only compensable for sprain/strain of the cervical and thoracic
spine. Dr. Weinsweig stated in his treatment request that MRIs of the brain, cervical, and
thoracic spine were necessary due to the presence of a thoracic syrinx, which was pre-existing
and not compensable. The Office of Judges therefore found that the treatment is not medically
necessary or reasonably required to treat a compensable condition in the claim. The Office of
Judges noted that the lumbar spine is also not a compensable component of the claim. It took
notice of its December 4, 2012, and January 24, 2013, Orders affirming denials of requests to
add lumbar radiculitis, lumbar sprain/strain, and lumbar disc herniation with myelopathy to the
claim. The Office of Judges further found that the StreetSelect Grievance Board determined on
October 5, 2012, that Dr. Bailey clearly noted in her treatment records that the lumbar spine and
syrinx were not related to the compensable injury and that treatment for them should not be
covered. Drs. DeWitt and Thaxton concurred. The Board also found that Dr. Weinsweig stated in
his treatment notes that the syrinx was unrelated to the compensable injury and recommended the
MRIs to check for tumor or vascular malformation. The Board found that while the tests may be
necessary, they should not be authorized in this claim because the condition is not a compensable
component. The Office of Judges agreed with the Board’s recommendation. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on March 18, 2014.

        On appeal, Mr. Johnston argues that he had no back pain and was receiving no treatment
for his back prior to the compensable injury. He asserts that it is therefore only logical that his
current back pain is the result of the compensable injury. Putnam Public Service District argues
that the only compensable conditions in the claim are neck and thoracic strains, which occurred
more than three years ago and have reached maximum medical improvement. It further argues
that the requested treatment is not necessary to treat the compensable injury.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. This Court previously determined in Johnston v. Putnam Public Service
District, No. 13-1105 (Dec. 3, 2014) (memorandum decision) and Johnston v. Putnam Public
Service District, No. 13-1106 (Dec. 3, 2014) (memorandum decision) that the lumbar spine is not
a compensable component of the claim. Because the condition is not compensable, the requested
medical treatment for it was properly denied. The evidentiary record also clearly shows that the
thoracic syrinx pre-existed and is unrelated to the compensable injury. Tests and treatment for it
were also properly denied.

        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: June 1, 2015

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




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