                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TRAVIS D. STEVENS,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0595	 (BOR Appeal No. 2049044)
                   (Claim No. 2013002651)

CABELL COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Travis D. Stevens, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The Cabell County Board of
Education, by Jillian Moore, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 21, 2014, in which
the Board affirmed a December 4, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 10, 2013, decision
denying authorization for a cervical spine MRI. Additionally, the Office of Judges affirmed the
claims administrator’s January 11, 2013, decision denying a request for authorization of twelve
days/units of post-operative physical therapy for the right shoulder for a duration of six weeks,
but approving a modification of the request for six days/units of post-operative physical therapy
for a duration of six weeks.1 Finally, the Office of Judges affirmed the claims administrator’s
April 8, 2013, decision denying authorization for a repeat right shoulder MRI. 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

1
 Mr. Stevens has not appealed the denial of his request for authorization of twelve days/units of
post-operative physical therapy for the right shoulder for a duration of six weeks and approval of
a modification of the request for six days/units of post-operative physical therapy for a duration
of six weeks.
                                                1
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Stevens sustained multiple injuries when he slipped and fell in the course of his
employment on July 10, 2012. As noted by the Office of Judges, neither the Report of Injury nor
the Order approving the claim is contained in the evidentiary record. Following the compensable
injury, Mr. Stevens sought treatment with Stanley Tao, M.D. Dr. Tao diagnosed a right rotator
cuff tear and noted that range of motion in the cervical spine was normal, although right
paraspinal tenderness was present. On September 27, 2012, Dr. Tao performed a right shoulder
arthroscopy, acromioplasty, and rotator cuff repair.

        On December 7, 2012, Mr. Stevens telephoned Dr. Tao’s office and reported that he was
experiencing neck pain. On December 27, 2012, Mr. Stevens telephoned Dr. Tao’s office again
and reported that he was experiencing numbness in the fingertips of his left hand but that
manipulation of his cervical spine during physical therapy alleviated some of the numbness. On
January 10, 2013, Richard Duncan, M.D., performed a records review following a request by Dr.
Tao for authorization of a cervical spine MRI. Dr. Duncan noted that although Dr. Tao initially
mentioned the presence of right paraspinal tenderness in the cervical spine, there is no report of
the presence of spasm of the paraspinal muscles or aggravation of the reported pain with motion.
Dr. Duncan then opined that given the lack of positive physical examination findings, the
requested cervical spine MRI is not medically necessary. Also on January 10, 2013, the claims
administrator denied authorization for the requested cervical spine MRI. Further, on January 11,
2013, the claims administrator denied authorization for twelve days/units of post-operative
physical therapy for the right shoulder for a duration of six weeks and approved a modification
of the request for six days/units of physical therapy for six weeks.

        On April 3, 2013, Martin Kaplan, D.O., performed a records review following a request
from Dr. Tao for authorization of a repeat right shoulder MRI. Dr. Kaplan noted that following
the right rotator cuff repair, range of motion in the right shoulder improved, no motor or sensory
deficits were observed, and all stability tests performed were negative. Dr. Kaplan then opined
that the requested repeat right shoulder MRI is not medically necessary because Mr. Stevens
does not have a significant change in his symptomology suggestive of significant pathology. On
April 8, 2013, the claims administrator denied authorization for the requested repeat right
shoulder MRI.

        In its Order affirming the January 10, 2013; January 11, 2013; and April 8, 2013, claims
administrator’s decisions, the Office of Judges held that the requested cervical spine MRI does
not constitute medically related and reasonably required treatment secondary to the compensable
injury, that the modification for six additional physical therapy visits does constitute medically
necessary and reasonably required treatment secondary to the compensable injury, and that the
requested repeat right shoulder MRI does not constitute medically related and reasonably
required treatment in relation to the compensable injury. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated May 21, 2014. On appeal,
Mr. Stevens asserts that the evidence of record demonstrates that the requested cervical spine and
right shoulder MRIs are medically necessary for the treatment of the compensable injury.
                                                2
        Regarding the requested cervical spine MRI, the Office of Judges questioned whether the
cervical spine is a compensable component of the claim. The Office of Judges then relied on Dr.
Duncan’s finding that the requested cervical spine MRI is not medically necessary given Mr.
Stevens’s medical history. Finally, the Office of Judges noted that approximately five years prior
to the compensable injury, Mr. Stevens underwent a nerve conduction study which revealed the
presence of bilateral carpal tunnel syndrome and moderate to severe left ulnar neuropathy. Mr.
Stevens’s complaints of numbness in the left hand, in part, precipitated Dr. Tao’s request for
authorization of a cervical spine MRI, and the Office of Judges noted that the pre-existing
diagnoses revealed during the nerve conduction study could account for the reported numbness
in Mr. Stevens’s left hand. Regarding the request for authorization of a repeat right shoulder
MRI, the Office of Judges relied on Dr. Kaplan’s finding that the requested repeat right shoulder
MRI is not medically necessary because Mr. Stevens does not have a significant change in his
symptomology suggestive of significant pathology. We agree with the reasoning and conclusions
of the Office of Judges as adopted and affirmed by the Board of Review.

        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: March 27, 2015

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

DISSENTING:
Justice Menis E. Ketchum




                                                3
