                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS                                     FILED
                                                                                     September 3, 2019
JESSE A. PEREZ,                                                                  EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                           OF WEST VIRGINIA



vs.)   No. 18-0853 (BOR Appeal No. 2052911)
                   (Claim No. 2015027144)

RAYNELL D. TOLER,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Jesse A. Perez, by Counsel John Shumate Jr., appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Raynell D. Toler, by
Counsel Timothy Huffman, filed a timely response.

        The issue on appeal is the rejection of a request for medical treatment. On October 30,
2017, the claims administrator denied a request for a referral to Brian Yee, D.O., for pain
management and cervical injections. The Workers’ Compensation Office of Judges (“Office of
Judges”) affirmed the claims administrator’s decision on April 25, 2018. This appeal arises from
the Board of Review’s Order dated September 10, 2018, in which the Board affirmed the decision
of the Office of Judges.

        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. Perez filed an application for workers’ compensation benefits on April 2, 2015,
indicating that while working as a carpenter, he injured his head when a loose board fell on his
head. He immediately sought treatment at Plateau Medical Center where he was diagnosed with a
head injury, concussion, and neck sprain. A small abrasion and hematoma was noted on the top of
his head. Mr. Perez complained of dizziness, headache and neck pain. A normal computerized
tomography scan (“CT scan”) was obtained and a scan of the cervical spine showed no fracture or
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dislocation. Mr. Perez did have mild degenerative disc disease with marginal osteophyte with an
extradural mass defect on the thecal sac with mild central canal stenosis at C4-C5. He was not
hospitalized but was asked to see his primary care physician within two to three days.

        Mr. Perez was treated by Barry Vaught, M.D., a neurologist, for headaches and dizziness.
In a progress note dated April 29, 2015, Dr. Vaught stated that Mr. Perez developed occipital
headaches, burning pain radiating up to the top of his head, and marked changes in his mood as a
result of his injuries. Mr. Perez also reported feelings of anxiety and anger following his injury.
Dr. Vaught diagnosed Mr. Perez with cervical spondylosis with myelopathy, occipital neuralgia,
and anxiety disorder. He prescribed medication to control Mr. Perez’s feelings of anxiety and
anger.

        An MRI conducted on May 20, 2015, at Raleigh General Hospital was interpreted to show
posterior bulging at C4-C7 intervertebral discs along with marginal osteophytes resulting in mild
spinal stenosis at C4-C6 levels. There was no evidence of spinal cord compression. The
interpretation was signed by Alan M. Lintala, M.D. Office notes dated June 23, 2015, and
September 10, 2015, from Dr. Vaught show that Mr. Perez continued to complain of occipital pain,
neck pain, and numbness, weakness, and tremors in his upper extremities. He reported significant
improvement in his anxiety with his medication.

        On August 5, 2015, James Dauphin, M.D., an orthopedic surgeon, issued a physician
review report to consider whether the claim should be updated to add displacement of the cervical
spine, displacement of the intervertebral disc, and spinal canal stenosis. Dr. Dauphin noted that
Mr. Perez is being treated by Dr. Vaught and Dr. Patel, both of whom believed that the ruptured
cervical disc was the result of his injury. Dr. Dauphin recommended that displacement of cervical
disc be added as a compensable diagnosis in the claim. He did not recommend that spinal stenosis
should be added to the claim.

       On October 20, 2015, Rajesh Patel, M.D., performed an anterior cervical discectomy with
decompression and fusion at the C4-C5, C5-C6, and C6-C7 levels of the cervical spine. The pre-
operative diagnosis was C6-C7 disc herniation, cervical spinal stenosis, cervical sprain, and
cervical myelopathy. The anterior cervical discectomy was performed at Raleigh General Hospital.

        Mr. Perez underwent an independent medical evaluation by Joseph E. Grady, M.D., on
April 11, 2016. Mr. Perez reported to Dr. Grady that surgery helped a great deal, but he still
continued to feel discomfort. Dr. Grady diagnosed status-post anterior cervical discectomy and
fusion from C4 to C7 for multilevel cervical spondylolisthesis; resolved facial soft tissue
contusion; and a reported history of concussion. There was no scarring or disfigurement and Mr.
Perez did not report any radicular symptoms. Dr. Grady did not believe he had reached his
maximum degree of medical improvement because he was still participating in therapy. Dr. Grady
believed that Mr. Perez would be at maximum medical improvement when he returned to Dr. Patel
later that month. On April 28, 2016, Dr. Grady issued an addendum report in which he reported
that Mr. Perez had reached maximum medical improvement. A return-to-work progress note had
been issued and there was discussion about him participating in a work-conditioning program.
Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment,
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(4th ed. 1993), Dr. Grady rated Mr. Perez’s whole person impairment at 25% for the cervical
component of his compensable injury.

       Mr. Perez requested that adjustment disorder and mixed anxiety depressed mood be added
as compensable components on November 11, 2016. On December 15, 2016, the claims
administrator denied Dr. Vaught’s request to add adjustment disorder with mixed anxiety and
depressed mood as a compensable diagnosis in the claim. Mr. Perez sought reconsideration of the
claims administrator’s decision.

       A progress note from Dr. Vaught dated November 14, 2016, reported that Mr. Perez
continues to have occasional headaches and minimal left occipital pain. He also reported decreased
cervical range of motion and some tingling in his hands. His anxiety had significantly improved
with the use of Cymbalta. Mr. Perez was still anxious about returning to the construction industry
and sustaining another accident.

        The Brickstreet Grievance Board (“Grievance Board”) convened on December 14, 2016,
to consider reconsideration of the claims administrator’s decision of November 11, 2016, denying
adjustment disorder with mixed anxiety and depressed mood as a compensable diagnosis in the
claim. The Grievance Board concluded that the claims administrator acted appropriately in light
of the evidence of record. The Grievance Board recommended that the Decision of November 11,
2016, be affirmed. As a result of the Grievance Board’s decision, on December 15, 2016, the
claims administrator denied Dr. Vaught’s request to add adjustment disorder with mixed anxiety
and depressed mood as a compensable diagnosis in the claim.

       A progress note from Dr. Vaught dated March 15, 2017, reported that Mr. Perez
experienced a loss of sensation in his right lower extremity and right lower extremity weakness.
Mr. Perez also reported difficulty with his balance and stumbling. Dr. Vaught’s assessment was
lumbar spondylosis with myelopathy. Dr. Vaught recommended a lumbar magnetic resonance
imaging study (“MRI”) and a nerve conduction study of his lower extremities.

        On May 24, 2017, in a follow-up report, Dr. Patel noted that x-rays revealed that the fusion
was still in good position and there were no signs of loosening. It was also reported that Mr. Perez
was doing better overall with minimal discomfort. The assessment was cervical post fusion
syndrome at C4 to C7, cervicalgia, and cervical sprain. Mr. Perez was to return to Dr. Patel in six
months.

        A progress note from Dr. Vaught dated July 24, 2017, indicated that Mr. Perez was still
complaining of neck pain and a soft tissue mass at the distal portion of the cervical spine. He
reported worsening pins and needles sensation in his upper extremities, a new tremor in his hands,
and a tingling sensation running from the base of his skull to the sacrum. He also complained of
depression and short-term memory loss. Dr. Vaught’s assessment was occipital neuralgia,
adjustment disorder with mixed anxiety and depressed mood, concussion, and cervical
spondylosis. Dr. Vaught recommended a cervical MRI to evaluate the new concerns. Mr. Perez
underwent an MRI on August 23, 2017. The MRI showed no disc herniation in the cervical spine.

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       On September 5, 2017, Dr. Vaught requested authorization for a referral to Dr. Yee at the
Center for Pain Relief.

        In a physician review report dated September 29, 2017, Syam Stoll, M.D., considered
whether the insurer should authorize the request for a referral to pain management for cervical
injections in this claim. Dr. Stoll noted that Dr. Grady concluded on April 22, 2016, that Mr. Perez
had reached his maximum degree of medical improvement with no need for further maintenance
care. Dr. Stoll also noted that a recent cervical MRI study of August 23, 2017, did not find evidence
of disc herniation and no significant spinal stenosis or neural foraminal narrowing. Dr. Stoll opined
that the request for cervical injections is not supported by the objective medical evidence in the
record. Dr. Stoll also stated that the evidence shows that the cervical fusion is stable. Dr. Stoll
concluded that any ongoing treatment in the claim is for subjective complaints that are not
substantiated by objective medical evidence.

        The claims administrator denied Dr. Vaught’s request to refer Mr. Perez to Dr. Yee for
pain management and cervical injections. Mr. Perez sought reconsideration of the claims
administrator’s decision. The Grievance Board convened on October 25, 2017, and concluded that
the claims administrator’s decision was appropriate and should be affirmed. The Board based its
decision upon the MRI study of August 23, 2017, and Dr. Stoll’s physician review report. As a
result of the Grievance Board’s decision, the claims administrator issued an Order on October 30,
2017, denying Dr. Vaught’s request to refer Mr. Perez to Dr. Yee for pain management and cervical
injections. Mr. Perez protested the claims administrator’s decision.

       Mr. Perez was seen for a follow-up evaluation on October 31, 2017, with Dr. Vaught for
his occipital neuralgia, post-concussion syndrome, cervicalgia, anxiety, and lumbosacral
radiculopathy. Mr. Perez reported that he continues to have occasional headaches. He also
expressed a desire to proceed with injections for cervicalgia.

        On December 11, 2017, A. E. Landis, M.D., performed an independent medical evaluation
of Mr. Perez. Dr. Landis diagnosed congenital fusion at C2-C3, surgical fusion with internal
fixation at C5-C7 and degenerative change at C1-C2 articulation. Dr. Landis found no evidence of
impairment above or below the 25% impairment rating which was previously awarded. Dr. Landis
concluded that the only indication for ongoing treatment would be for use of nonsteroidal, anti-
inflammatory medication. Dr. Landis opined that injection therapy of the cervical spine was not
indicated and was “totally unnecessary at this point.”

        Dr. Vaught authored a Statement and Affidavit of Medical Necessity dated January 18,
2018. Dr. Vaught stated that Mr. Perez should receive authorization for a referral to Dr. Yee at
the Center for Pain Relief for pain management and cervical injections. He opined that the referral
and injections would improve the cervicalgia condition and the quality of life of Mr. Perez. Dr.
Vaught also stated that during the course of treatment, Mr. Perez had tried and failed multiple
therapies and medications.

       The claim was submitted for decision and an Order was entered by the Office of Judges on
April 25, 2018, which denied the request for a referral to Dr. Yee for pain management and cervical
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injections. The Office of Judges did not find Dr. Vaught’s medical findings to be persuasive that
pain management and cervical injections were medically necessary for treatment of the
compensable conditions. It was noted that Drs. Grady, Patel, Stoll, and Landis all concluded that
Mr. Perez had reached his maximum degree of medical improvement and required no additional
treatment. The Office of Judges concluded that Dr. Vaught’s assessment is contrary to the weight
of the medical evidence. The claims administrator’s Order of October 30, 2017, was affirmed. The
Board of Review adopted the findings and conclusions of the Office of Judges and affirmed its
decision in an Order dated September 10, 2018.

        After review, we agree with the decision of the Board of Review. The evidence in this
claim, as noted by the Office of Judges, establishes that Mr. Perez reached his maximum degree
of medical improvement and that he is in need of no further maintenance care related to his injury.
Mr. Perez has failed to establish that the request for a referral to Dr. Yee for pain management and
cervical injections is reasonable or medically necessary in this claim. A preponderance of the
evidence supports affirmation of the claims administrator’s Order of October 30, 2017.

        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 3, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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