                                  STATE OF WEST VIRGINIA

                                                                                               FILED
                               SUPREME COURT OF APPEALS                                     March 12, 2014
                                                                                        RORY L. PERRY II, CLERK
                                                                                      SUPREME COURT OF APPEALS
KENDALL CAIN,                                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)    No. 12-1216 (BOR Appeal No. 2047110)
                    (Claim No. 2009066266)

                 and

        No. 12-1218 (BOR Appeal No. 2047111)
                    (Claim No. 2009066266)


ANCHOR LONGWALL AND REBUILD, INC.,
Employer Below, Respondent


                                  MEMORANDUM DECISION
       Petitioner Kendall Cain, by Jane Glauser, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Anchor Longwall and Rebuild, Inc., by
Lucinda Fluharty, its attorney, filed a timely response.

       The first appeal (12-1216) arises from the Board of Review’s Final Order dated
September 21, 2012, in which the Board affirmed a March 21, 2012, Order of the Workers’
Compensation Office of Judges.1 In its Order, the Office of Judges denied Mr. Cain’s request for
attorney’s fees incurred in the protest of the claims administrator’s March 1, 2011, decision
which denied a request for L3-4 nerve root blocks.

       The second appeal (12-1218) arises from the Board of Review’s Final Order dated
September 21, 2012, in which the Board affirmed a March 21, 2012, Order of the Workers’
Compensation Office of Judges. In its Order, the Office of Judges denied Mr. Cain’s request for
attorney’s fees incurred in the protest of the claims administrator’s March 1, 2011, decision
which denied a request for the medications Naproxen, Baclofen, and Percocet. The Court has

1
  Pursuant to an Order entered on October 22, 2012, this Court has consolidated Case Nos. 12-1216 and 12-1218 for
purposes of consideration and decision.
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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. Cain, a laborer, injured his lower back and legs while lifting parts in the course of his
employment. His claim was held compensable for multiple lumbar spine conditions including
herniated discs. In a treatment note on May 19, 2010, Roland Chalifoux, D.O., noted that a
neurosurgeon, Warren Boling, M.D., recommended Mr. Cain undergo surgery to treat lumbar
herniated discs. Nerve root blocks and medication were found to provide some relief for Mr.
Cain, and Dr. Chalifoux wished to continue them until he was able to undergo surgery.

       The StreetSelect Grievance Board recommended denying a request for L3-4 nerve root
blocks and the medications Naproxen, Baclofen, and Percocet on February 25, 2011. It found
that Mr. Cain had received considerable treatment for his compensable injuries including
multiple injections. He had also received authorization for a neurosurgical consultation. The
Grievance Board recommended withholding further treatment pending the consultation. Its
opinion was based upon the authorization request as well as Sushil Sethi M.D.,’s November 8,
2010, independent medical evaluation. In that evaluation, he found that Mr. Cain was at
maximum medical improvement. He also determined that the medical treatment rendered to date
was not medically necessary or appropriate. The Grievance Board also relied upon a physician
review by Prasadarao Mukkamala, M.D. In that review, it was determined that Mr. Cain only
required a home physical therapy program and over the counter medications to treat his
compensable conditions. Based upon the Grievance Board’s recommendation, the claims
administrator denied requests for L3-4 nerve root blocks and the medications Naproxen,
Baclofen, and Percocet on March 1, 2011.

        The Office of Judges reversed the decision of the claims administrator in its August 12,
2011, Order. It found that the nerve root blocks and medications were medically related and
reasonably required for the treatment of Mr. Cain’s compensable back conditions. The Grievance
Board’s decision was determined to be based upon reports by Dr. Sethi and Dr. Mukkamala. The
Office of Judges found the medical opinion of Dr. Chalifoux to be more persuasive, because it
was consistent with Dr. Boling’s opinion that surgery would be necessary in the future. Mr. Cain
petitioned for attorney’s fees and costs based on the reversal of the claims administrator’s March
1, 2011, decision.

       In its March 21, 2012, Order, the Office of Judges held that attorney’s fees and costs
were not appropriate in this case pursuant to West Virginia Code § 23-2C-21(c) (2009), which
provides that reasonable attorney’s fees are to be awarded to the claimant in cases where the
denial of an award is found to be unreasonable. A denial is unreasonable if the claims
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administrator is unable to demonstrate that it had relevant and probative evidence or a legal basis
to support the denial. The Office of Judges determined that the claims administrator denied nerve
root blocks and the medications Naproxen, Baclofen, and Percocet in this case based upon the
StreetSelect Grievance Board’s February 25, 2011, recommendation. The Grievance Board
relied upon the authorization request, Dr. Sethi’s independent medical evaluation, Dr.
Mukkamala’s physician review report, and the claims administrator’s decision which granted
authorization of a neurosurgical consultation. It noted that Mr. Cain underwent multiple
injections and was authorized to undergo a neurosurgical consultation. The Grievance Board
determined that further treatment should be withheld pending the neurosurgical consultation. The
Office of Judges found that the claims administrator’s decision was reversed based upon Dr.
Chalifoux’s reports which indicated that nerve root blocks and medication provided temporary
relief while Mr. Cain awaited surgery. Selective nerve root blocks and medication were
concluded to be the best treatment options after Mr. Cain declined to undergo surgery. Dr.
Chalifoux’s treatment records also established that Naproxen, Baclofen, and Percocet had
previously been used to treat the injuries. While the Office of Judges found Dr. Chalifoux’s
opinion to be persuasive, it was not considered by the Grievance Board. The Office of Judges
therefore held that the employer had demonstrated that at the time of the claims administrator’s
decision there was evidence that supported the denial of authorization of nerve root blocks and
the medications Naproxen, Baclofen, and Percocet. Accordingly, attorney’s fees were not
awarded in this case.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 21, 2012, decision. This Court agrees with the
Board of Review’s reasoning and conclusions. The claims administrator denied the claim based
upon the StreetSelect Grievance Board’s recommendation which was based upon relevant and
probative medical reports.

        For the foregoing reasons, we find that the decisions of the Board of Review are not in
clear violation of any constitutional or statutory provision, nor are they clearly the result of
erroneous conclusions of law, nor are they based upon a material misstatement or
mischaracterization of the evidentiary record. Therefore, the decisions of the Board of Review
are affirmed.
                                                                                      Affirmed.

ISSUED: March 12, 2014

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


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