                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              February 4, 2016
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
DANNY J. SMITH,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0103	 (BOR Appeal No. 2049927)
                   (Claim No. 860039806)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

JOHN ROGER MINING, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Danny J. Smith, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by
Noah Barnes, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 20, 2015, in
which the Board affirmed a September 30, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 30, 2014,
decision denying Mr. Smith’s request for authorization of two caudal epidural injections and two
lumbar facet joint 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 that the Board of Review’s decision is in clear violation of a statutory
provision. 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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        Mr. Smith injured his left knee in the course of his employment on February 12, 1986,
when he stepped on a rock and twisted his knee.1 Mr. Smith is now requesting authorization for
two caudal epidural injections and two lumbar facet joint injections.2 In his report detailing the
results of his August 19, 2013, evaluation of Mr. Smith, Saghir Mir, M.D., opined that Mr. Smith
does not require epidural or facet injections in relation to the February 12, 1986, injury. Dr. Mir
further opined that there is no clinical evidence of radiculopathy to justify the use of epidural
injections. Finally, Dr. Mir opined that facet injections are not required in relation to the
treatment of the February 12, 1986, injury because the majority of Mr. Smith’s facet joint
changes are generalized and are unrelated to the February 12, 1986, injury.

       On April 30, 2014, the claims administrator denied Mr. Smith’s request for authorization
of two epidural caudal injections and two lumbar facet injections. In its Order affirming the
claims administrator’s decision, the Office of Judges held that Mr. Smith has failed to prove by a
preponderance of the evidence that the requested injections constitute medically related and
reasonably required treatment in relation to the February 12, 1986, injury. The Board of Review
affirmed the reasoning and conclusions of the Office of Judges in its decision dated January 20,
2015.

       After reviewing Dr. Mir’s summarization of Mr. Smith’s medical record, which is the
only medical evidence of record, the Office of Judges noted that it appears that at least some
portion of the treatment Mr. Smith has received in relation to his lower back, namely the L4-5
discectomy, was not submitted as a claim for workers’ compensation benefits. The Office of
Judges further noted that Mr. Smith failed to submit any evidence demonstrating that the
requested injections are related to continuing treatment for the February 12, 1986, injury.

       After reviewing the record, we find that the decision of the Office of Judges, which was
affirmed by the Board of Review, is in clear violation of a statutory provision. Dr. Mir’s report

1
  The only evidence of record pertaining to the circumstances of the February 12, 1986, injury is
contained within the August 19, 2013, report of Dr. Mir in which he summarized the medical
records of Mr. Smith which were made available for his review. Dr. Mir noted that the injury
was initially held compensable for osteoarthritis of the lower leg, chrondromalacia of the patella,
derangement of the meniscus, tear of the medial cartilage or meniscus, and dislocation of the
patella. Dr. Mir noted that Mr. Smith underwent multiple arthroscopies and a left total knee
arthroplasty for the treatment of the compensable left knee injury.
2
  The only medical evidence of record relating to Mr. Smith’s lumbar spine is contained within
Dr. Mir’s August 19, 2013, summarization of Mr. Smith’s medical record. Dr. Mir noted that Mr.
Smith underwent an L4-5 discectomy for the treatment of a herniated disc in 1997, which was
performed at a Veteran’s Affairs Hospital. Additionally, Dr. Mir stated that he “believes” that
Mr. Smith’s lower back was added as a compensable component of the claim arising from the
February 12, 1986, injury. Further, Dr. Mir noted that Mr. Smith has been receiving lumbar facet
and epidural injections for approximately twelve years, which Dr. Mir indicated may have been
authorized by the claims administrator. However, no evidence pertaining to the compensability
of the lower back, prior authorizations for lumbar facet and epidural injections, or Mr. Smith’s
ongoing need for such injections has been introduced into the record.
                                                2
clearly indicates that the lower back has been added as a compensable body part in the instant
claim. His report further indicates that Mr. Smith may have received authorization for some
forms of treatment relating to the lower back. West Virginia Code of State Rules § 93-1-6.8
(2008) provides that the Office of Judges “may order further action in a protest when it appears
that a legal issue has not been sufficiently addressed”. Although the evidentiary record currently
before the Office of Judges offers no definitive information regarding the compensability of the
lower back, given the fact that Dr. Mir’s report indicates that the lower back has been added as a
compensable body part and the fact that Mr. Smith is a pro se claimant, pursuant to West
Virginia Code of State Rules § 93-1-6.8 the Office of Judges should have taken further action in
order to discover which diagnosis or diagnoses regarding the lower back have been added as
compensable components of the claim. Further, the Office of Judges acknowledged in its Order
that the lower back has apparently been added as a compensable body part. Therefore, the Office
of Judges’ failure to take additional action aimed at discovering the nature of the lower back
component of the instant claim has resulted in the inadequate development of a legal issue
central to Mr. Smith’s protest of the April 30, 2014, claims administrator’s decision which must
be resolved before the issue of Mr. Smith’s entitlement to the requested epidural and lumbar
facet injections can be fairly determined.

        For the foregoing reasons, we find that the decision of the Board of Review is in clear
violation of a statutory provision. Therefore, the decision of the Board of Review is reversed and
the claim is remanded to the Office of Judges with instructions to reconsider Mr. Smith’s request
for authorization of two caudal epidural injections and two lumbar facet injections in light of the
provisions of West Virginia Code of State Rules § 93-1-6.8.

                                                                         Reversed and remanded.

ISSUED: February 4, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Margaret L. Workman

DISSENTING:
Justice Brent D. Benjamin
Justice Allen H. Loughry II


LOUGHRY, J., dissenting:
       I dissent from the majority’s decision to reverse the decision of the Board of Review and
remand the claim to the Office of Judges for further consideration pursuant to West Virginia
Code of State Rules § 93-1-6.8. Although Mr. Smith is a pro se claimant, he bears the burden of
demonstrating that the requested caudal epidural and lumbar facet injections are medically
necessary and reasonably required for the ongoing treatment of conditions arising as a result of
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the February 12, 1986, left knee injury. Mr. Smith failed to submit any evidence in support of his
protest from the April 30, 2014, claims administrator’s decision to the Office of Judges. In that
regard, Mr. Smith has failed to establish that the requested injections are medically necessary and
reasonably required for the ongoing treatment of conditions arising as a result of the February 12,
1986, left knee injury. Further, the only medical evidence of record, namely the report of Dr.
Mir, indicates that the requested injections are not required for the treatment of the February 12,
1986, injury. The claims administrator, Office of Judges, and Board of Review all correctly
concluded that Mr. Smith has failed to establish that the requested injections constitute medically
related and reasonably required treatment in relation to the February 12, 1986, injury. West
Virginia Code § 23-5-15(c) (2010) provides, in pertinent part:

               If the decision of the board represents an affirmation of a prior
               ruling by both the commission and the Office of Judges that was
               entered on the same issue in the same claim, the decision of the
               board may be reversed or modified by the Supreme Court of
               Appeals only if the decision is in clear violation of constitutional
               or statutory provision, is clearly the result of erroneous conclusions
               of law, or is based upon the board’s material misstatement or
               mischaracterization of particular components of the evidentiary
               record. The court may not conduct a de novo re-weighing of the
               evidentiary record.

(Emphasis added). Accordingly, for the reasons set forth above, I would have affirmed the
decision of the Board of Review.




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