                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 17, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOHN L. BOOTHE,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1088 (BOR Appeal No. 2049383)
                   (Claim No. 2000030317)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

G & G BUILDERS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner John L. Boothe, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Anna L. Faulkner, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 24, 2014, in
which the Board affirmed a March 25, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 20, 2013,
decision denying Mr. Boothe’s request for three cervical trigger point injections. 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.

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         Mr. Boothe worked for G & G Builders, Inc., as a construction worker. On November 17,
1999, Mr. Boothe sustained injuries to his neck and shoulder while hanging sheet rock off a
scaffold. The claim was held compensable for specified disorder of bursae, disorders of the
bursae tendons into the shoulder region, adhesive capsulitis of shoulder, neck sprain, and sprain
of site of shoulder. On May 30, 2012, Robert P. Kropac, M.D., performed an independent
medical evaluation on Mr. Boothe and found that Mr. Boothe had reached maximum medical
improvement for his cervical spine and shoulder and recommended no other treatment except for
medical maintenance care with the use of Oxycodone. J. Jorge Gordinho, M.D., from
Responsible Pain and Aesthetic Management, saw Mr. Boothe on many occasions beginning on
January 7, 2013. All of Dr. Gordinho’s reports in terms of treatment only recommended that Mr.
Boothe continue with using Oxycodone. In a letter, James Lowe, PA-C, from Responsible Pain
and Aesthetic Management requested authorization for trigger point injections in a series of three
visits. The claims administrator denied the requested cervical trigger point injections due to lack
of documentation of objective physical signs and subjective symptoms to support use of the
proposed procedure.

        The Office of Judges affirmed the claims administrator’s decision and found that a
preponderance of credible medical evidence fails to establish the reasonableness and necessity of
trigger point injections. The Board of Review affirmed the Order of the Office of Judges. On
appeal, Mr. Boothe disagrees and asserts that the requested trigger point injections are reasonable
medical treatment and are related to this occupational injury. The West Virginia Office of
Insurance Commissioner maintains that the Board of Review correctly upheld the findings and
conclusion of the Office of Judges and that the Office of Judges correctly denied the injections
because it found Dr. Kropac’s report was more persuasive.

        The Office of Judges found that although Mr. Boothe does suffer from chronic pain, the
reports of Dr. Gordinho failed to mention any evidence of active trigger points. The Office of
Judges noted that trigger point injections are needed when Mr. Boothe’s symptoms and
examination findings are consistent with active trigger points. Additionally, the Office of Judges
determined that nowhere in Dr. Gordinho’s treatment notes did he suggest any change in Mr.
Boothe’s treatment but only continued him on Oxycodone. The Office of Judges noted that Dr.
Gordinho’s examination of Mr. Boothe appeared to be somewhat perfunctory in nature based on
the treatment notes and that the notes appeared similar if not identical. The request for
authorization was not made by Dr. Gordinho, but the request was made by Mr. Lowe who works
as a physician’s assistant at Responsible Pain and Aesthetic Management. The request from Mr.
Lowe for the trigger point injections was dated May 30, 2013. Mr. Boothe was seen by Dr.
Gordinho on at least three occasions after Mr. Lowe’s request. Dr. Gordinho never mentioned
the need for trigger point injections.

        The Office of Judges found that the independent medical evaluation performed by Dr.
Kropac was far more detailed in description than any report that Mr. Boothe submitted into
evidence. Dr. Kropac did not identify any active trigger points or recommend trigger point
injections as a modality of treatment for Mr. Boothe. The Office of Judges concluded that no
medical report directly contradicted the findings and conclusions of Dr. Kropac and that Mr.

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Boothe failed to prove that he is entitled to the requested medical benefits. The Office of Judges
found the claims administrator was justified in denying the requested treatment.

        The Board of Review agreed with the Office of Judges, and this Court agrees with the
Board of Review. Mr. Lowe is employed at Responsible Pain and Aesthetic Management like
Dr. Gordinho, but all of the medical reports from Responsible Pain and Aesthetic Management
were completed by Dr. Gordinho except for Mr. Lowe’s letter requesting the trigger point
injections. There are no medical reports in evidence of Mr. Lowe examining or treating Mr.
Boothe. Mr. Lowe is the only medical professional who indicates that trigger point injections are
needed for the compensable injury. Mr. Boothe was also seen by Dr. Gordinho and Dr. Kropac,
and both of these physicians only recommended Mr. Boothe continue Oxycodone as his course
of treatment for the compensable injury. Dr. Kropac’s report is very detailed and is the most
persuasive medical evidence of record.

        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: September 17, 2015

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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