                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 16, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CONNIE COCHRAN-SWIGER,                                                        OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1188 (BOR Appeal No. 2049375)
                   (Claim No. 2013001734)

CENTRAL WEST VIRGINIA
COMMUNTIY ACTION ASSOCIATION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Connie Cochran-Swiger, by Robert L. Stultz, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Central West Virginia
Community Action Association, Inc., by Alyssa A. Sloan, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 24, 2014, in
which the Board affirmed an April 16, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 28, 2013, and
June 7, 2013, decisions denying the addition of post-laminectomy syndrome and brachial
neuritis/radiculitis to the claim. The Office of Judges also affirmed the claims administrator’s
May 24, 2013, decision denying a request for an anterior cervical discectomy at C5-6 and a pre­
operative ears, nose, and throat (ENT) exam. The Office of Judges also affirmed the claims
administrator’s April 30, 2013, and March 18, 2013, decisions closing the claim for
rehabilitation services and temporary total disability benefits. 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.


                                                1
        Ms. Cochran-Swiger, a health administrator, was injured in the course of her employment
on July 10, 2012, when she lifted her briefcase/computer bag. The claim was held compensable
for neck sprain. Ms. Cochran-Swiger has a long history of cervical spine pain, injury, and
surgery. She was in a motor vehicle accident in 1995 that caused a cervical strain for which she
received treatment for the next several years. In 1999, she developed left cervical radiculopathy.
Ms. Cochran-Swiger was in a compensable motor vehicle accident in 2002 in which she
sustained a cervical sprain and shoulder strain. She was also diagnosed with cervical spondylosis
and a herniated disc. The claim was held compensable for brachial neuritis/radiculitis, shoulder
sprain/strain, and neck sprain/strain. Ms. Cochran-Swiger eventually underwent surgery for a
herniated C6-7 disc in 2003. Following the compensable injury in the instant case, Ms.
Cochran-Swiger was treated at United Hospital Center where she reported pain in her neck and
head. She was diagnosed with neck pain and headache, and a CT scan showed degenerative
changes in the cervical spine. A cervical MRI taken a month after the injury showed a mild
posterior disc bulge at C5-6.

        Joseph Grady, M.D., performed an independent medical evaluation on November 15,
2012, in which he diagnosed cervical myofascial strain superimposed on previous anterior
cervical discectomy and fusion at C6-7. He noted that Ms. Cochran-Swiger had no signs of
radiculopathy on examination. He opined that she would not need invasive treatment and that
finishing physical therapy would place her at maximum medical improvement. Ms. Cochran-
Swiger was subsequently treated by John France, M.D., who diagnosed cervical spondylotic
changes with radicular symptoms. He stated that if surgery were performed, it would be to treat
her arm pain and would have very minimal success at helping the neck pain. He noted that the
left side symptoms are fairly new and unrelated to her previous C6-7 fusion. He stated that the
left side symptoms are the result of C6 radiculopathy. He stated that an ENT exam needed to be
performed prior to surgery. In an April 20, 2013, rehabilitation report, it was noted that Dr.
France told Ms. Cochran-Swiger that her changes were degenerative in nature.

        Randall Short, D.O., performed a physician review on April 10, 2013, in which he
recommended denying the requested surgery and preoperative ENT exam. He stated that Ms.
Cochran-Swiger had a previous C6-7 fusion and there are now degenerative changes above and
below the level at C5-6 and C6-7. The degenerative changes are resulting in foraminal narrowing
and left radicular symptoms. He opined that the symptoms are the result of chronic degenerative
processes. He stated that it is known that the disc space above and below a cervical fusion may
become more degenerative than if there was no fusion and that eventual herniations are possible.
Therefore, he concluded that the requested treatment was for chronic, ongoing, pre-existing
degenerative changes unrelated to the compensable injury.

        Dr. Grady performed a second independent medical evaluation on May 1, 2013, in which
he diagnosed chronic cervicalgia with reported multiple level disc protrusions superimposed on a
previous cervical fusion at C6-7. He stated that Ms. Cochran-Swiger had reached maximum
medical improvement for the compensable neck sprain. He also stated that no maintenance care
was necessary for the injury, and her current pain is not the result of the neck sprain. He noted
that she has significant cervical spondylosis. Rebecca Thaxton, M.D., concurred in her May 3,
2013, physician review. She opined that post-laminectomy syndrome should not be added to the
                                                2
claim. She stated that the mechanism of injury, lifting a brief case, is consistent with a
sprain/strain injury more so than post-laminectomy syndrome in the face of pre-existing cervical
spine surgery. Christopher Martin, M.D., also performed a record review in which he opined that
none of Ms. Cochran-Swiger’s current symptoms can be related to her work injury. He stated
that post-laminectomy syndrome and brachial neuritis/radiculitis should not be added to the
claim and that additional treatment is unnecessary. He noted that the work-related injury was
very mild, and the mechanism of injury has never been shown to cause the extensive type of
structural damage in the cervical spine that would require surgical treatment and cause persistent,
debilitating symptoms for more than fifteen months. He noted that Ms. Cochran-Swiger has a
very extensive history of similar complaints going back for more than eighteen years for which
she repeatedly sought medical attention.

        The claims administrator closed the claim for rehabilitation services and temporary total
disability benefits in its March 18, 2013, and April 30, 2013, decisions. On May 24, 2013, it
denied a request for an anterior cervical discectomy at C5-6 and a pre-operative ears, nose, and
throat examination. Finally, the claims administrator denied requests to add post-laminectomy
syndrome and brachial neuritis/radiculitis to the claim on June 7, 2013, and June 28, 2013. The
Office of Judges affirmed all of the decisions in its April 16, 2014, Order.

        The Office of Judges affirmed the claims administrator’s decisions denying requests to
add post-laminectomy syndrome and brachial neuritis/radiculitis to the claim. It found that the
evidentiary record shows a long history of neck pain as well as cervical surgery. Ms. Cochran-
Swiger complained of neck pain and left side radiculopathy beginning in 1995. She had various
complaints throughout the subsequent years including complaints of left cervical spine pain and
radicular symptoms into the left arm in November of 2010. She was also treated in May of 2011
for cervical spine pain. The Office of Judges further determined that the diagnostic evidence of
record shows degenerative changes and stenosis in the cervical spine. The request to add post­
laminectomy syndrome and brachial neuritis/radiculitis to the claim was made by Dr. France. In
his treatment notes he stated that the issue is really a degenerative process. The Office of Judges
noted that Ms. Cochran-Swiger had a prior workers’ compensation claim which was held
compensable for brachial neuritis/radiculitis. Post-laminectomy syndrome and brachial
neuritis/radiculitis were therefore determined not to be compensable conditions in the claim.

        The Office of Judges also affirmed the claims administrator’s denial of a request for
cervical spine surgery. It determined that the only compensable condition in the claim is neck
sprain. Per West Virginia Code of State Rules § 85-20-35.5 (2006), the estimated duration of
care for a cervical sprain/strain is one to four weeks, not to exceed eight weeks. The request for
surgery was made far beyond the eight week duration of care. Further, per West Virginia Code of
State Rules § 85-20-35.5 (2006), operative treatment for a cervical sprain/strain is inappropriate.
The Office of Judges found that the medical evidence of record fails to establish that this is an
extraordinary case. It also determined that Ms. Cochran-Swiger failed to establish that the
requested treatment is necessary to treat the compensable condition. The request for surgery was
made for the diagnosis of C6 radiculopathy, a non-compensable condition.


                                                3
        The Office of Judges also affirmed the claims administrator’s decision closing the claim
for temporary total disability benefits. It noted that the reason given for closing the claim was
incorrect as the claims administrator stated that the claim was closed because there was no
evidence showing that Ms. Cochran-Swiger continued to be totally disabled. Instead, the Office
of Judges found, per the report of Dr. Grady, that a preponderance of the evidence shows that she
reached maximum medical improvement when her physical therapy was discontinued. Further,
Dr. France stated in a May 26, 2013, meeting that Ms. Cochran-Swiger could return to work
unrestricted. The Office of Judges noted that if she is currently unable to return to work, it is due
to her non-compensable conditions. Finally, the Office of Judges affirmed the claims
administrator’s decision closing the claim for vocational rehabilitation. It reiterated that Dr.
France opined Ms. Cochran-Swiger could return to work without restrictions. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on October 24, 2014.

        On appeal, Ms. Cochran-Swiger argues that Dr. France found that the lifting injury
aggravated her degenerative condition and the left side symptoms were fairly new and unrelated
to her previous surgery. She further asserts that she has not been released to return to work and is
therefore entitled to temporary total disability benefits. Central West Virginia Community Action
Association, Inc., argues that post-laminectomy syndrome is the result of Ms. Cochran-Swiger’s
prior cervical surgery and that Dr. France indicated her condition is degenerative in nature. It
further asserts that the mechanism of injury is consistent with a cervical sprain only and surgery
is unnecessary for the simple injury. It also argues that Ms. Cochran-Swiger was found to be at
maximum medial improvement, her current treatment is not necessary for the compensable
injury, and temporary total disability benefits and rehabilitation services were therefore properly
denied.

         After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Ms. Cochran-Swiger sustained a cervical sprain/strain as the result of her
work-related injury. Post-laminectomy syndrome and brachial neuritis/radiculitis are related to
her pre-existing cervical degenerative disc disease and not the compensable injury in this case.
The requested surgery is for the treatment of non-compensable conditions and not medically
necessary or reasonably required for the compensable injury. Finally, Ms. Cochran-Swiger has
been determined to be at maximum medical improvement and released to return to work with no
restrictions. The claim was therefore properly closed for temporary total disability benefits and
rehabilitation services.

        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 16, 2015

                                                 4
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                    5
