                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
SANDRA BARKER,                                                                 December 17, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0562 (BOR Appeal No. 2046645)
                   (Claim No. 2004033050)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CEDAR GROVE PERSONAL CARE HOME,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Sandra Barker, by George Zivkovich, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by David L. Stuart, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 16, 2012, in
which the Board affirmed a November 18, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 10, 2011,
decision denying Ms. Barker’s request for a consultation with Dr. Zerick. 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.

        Ms. Barker was working as a nurse’s aide for Cedar Grove Personal Care Home when
she slipped and fell on black ice in a parking lot on January 27, 2004. The claim was held
                                                1
compensable for sprain/strain of the lumbar region, sprain/strain of the left knee/leg, and
contusion of the left hip. On September 17, 2009, Dr. Zerick concluded that Ms. Barker had an
absolute normal MRI of the lumbar spine. Dr. Shramowiat noted on May 12, 2009, that the
treatment plan was to follow up with Dr. Zerick for surgical evaluation for the lumbar spine. The
claims administrator denied Ms. Barker’s request for a consultation with Dr. Zerick.

        The Office of Judges affirmed the claims administrator’s decision and held that in
accordance with the records and the facts Ms. Barker had not demonstrated that a consultation
with Dr. Zerick should be authorized. Ms. Barker disagrees and asserts that Dr. Shramowiat
concluded that she had a herniated disc at L3-4, and an annular tear at L4-5, which is consistent
with all of her MRIs and both can cause radiculopathy. She further asserts that no evidence has
been presented to show she had any subsequent injuries after January 27, 2004.

        The Office of Judges concluded that the only reason Dr. Sharmowiat provided for
recommending a consultation with Dr. Zerick was to determine if Ms. Baker needed surgery for
a herniated disc. Dr. Zerick had a previous consultation with Ms. Barker on September 17, 2009,
where he determined the latest MRI did not show any indication of a herniated disc. Dr. Zerick
opined that a myelogram may be a better alternative than an MRI, but then determined that Ms.
Barker cannot have a myelogram because she is allergic to shellfish. The Office of Judges
determined that Ms. Barker has had numerous MRIs and aside from the one MRI dated July 3,
2004, there has been no indication that Ms. Barker has a herniated disc. The latest MRI dated
February 16, 2011, showed no lumbar disc protrusion. The Office of Judges held that based on
the records and the facts Ms. Barker has not demonstrated that another consultation with Dr.
Zerick should be authorized at this time. The Board of Review reached the same reasoned
conclusions in its decision of April 16, 2012. We agree with the reasoning and conclusions of 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: December 17, 2013

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


                                                2
