                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
JOHN KELLISON,                                                                      FILED
                                                                                  August 11, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.)   No. 15-0796 (BOR Appeal No. 2050231)
                   (Claim No.2012016997)

DUNHAM’S ATHLEISURE CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner, John Kellison, by George Zivkovich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Dunham’s Athleisure Corporation, by
Steven K. Wellman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 30, 2015, in which
the Board affirmed the February 5, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges determined the claims administrator’s February 27, 2013,
decision denying the request to reopen the claim for payment of temporary total disability
benefits for the period from June 26, 2012, to January 30, 2013, was moot due to the claims
administrator’s May 8, 2014, decision. It determined the claims administrator’s February 27,
2013, decision denying the addition of lumbar sprain/strain, thoracic sprain/strain, and lumbar
radiculitis/radiculopathy as compensable conditions was moot due to the claims administrator’s
May 8, 2014, decision. It also determined the claim administrator’s February 28, 2013, decision
denying chiropractic treatment was moot due to the claims administrator’s May 8, 2014,
decision. Next, the Office of Judges affirmed, in part, and reversed, in part, the claims
administrator’s May 8, 2014, decision adding lumbar strain/sprain as a compensable condition
and denying the addition of thoracic sprain/strain and lumbar radiculitis/radiculopathy as a
compensable condition. Finally, the Office Judges reversed and remanded the claims
administrator’s June 6, 2014, and June 16, 2014, decisions denying requests to reopen the claim
for 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
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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        John Kellison sustained an injury to his back while lifting boxes on April 14, 1998, for a
previous employer. As a result of that injury, Mr. Kellison was diagnosed with displacement of
the lumbar intervertebral disc without myelopathy, lumbar sprain, and leg pain. He underwent
surgery on March 14, 2001, for his lumbar spine including an L4-5 medical fasciectomy,
hemilaminotomy, and discectomy due to L4-5 herniated disc causing leg pain. He recovered
from that surgery and resumed work.

        Mr. Kellison was injured on November 3, 2011, while he was getting a deer tree stand off
of a shelf for a customer. He was on a ladder handing the stand down to the customer when he
felt pain and tingling in his left arm. He was seen by physicians at Med Express and diagnosed
with a left shoulder sprain. He completed a first report of injury, and the left shoulder sprain was
held compensable by the claims administrator.

        Mr. Kellison worked in a light duty capacity while he underwent physical therapy for his
left shoulder. On April 9, 2012, after his physical therapy session, Mr. Kellison was experiencing
back pain. He did not go to physical therapy on April 12, 2012, due to the back pain. On April
18, 2012, he presented to physical therapy with minimal soreness. Mr. Kellison reported his low
back was feeling much better. However, he reported his low back had been severely
uncomfortable after the upper thoracic manipulation on April 9, 2012, and that he had
experienced pain radiating into his right leg that caused him to stay home from work.

        On May 4, 2012, Mr. Kellison returned to physical therapy with severe back spasms of
insidious onset the day before. On May 16, 2012, Mr. Kellison reported to his physical therapist
that his shoulder was better after not having lifted at work for a couple of weeks, and he
requested to be discharged from therapy. He was discharged with instructions to do exercises at
home. On May 18, 2012, Mr. Kellison was released to return to work with no restrictions.
However, he stopped working on June 26, 2012, due to back pain.

        Mr. Kellison presented to David R. Hall, D.C., on June 26, 2012, with a chief complaint
of pain in his mid and low back, which was a new condition occurring in the last three months.
He complained of bilateral pain radiating down his legs that started in April of 2012, when the
physical therapist manipulated his mid back. A roentgenological report noted apparent moderate
myospasm of the thoracic and lumbar spine, narrowed disc spaces between L4-L5, osteoarthritis
of the L4-S1 region, and multiple spinal mis-alignments. His treatment plan was for chiropractic
care three times a week for four weeks.

        An August 7, 2012, MRI of the lumbar spine showed six lumbar type vertebrae with
marked degenerative disc changes, a shallow foraminal disc protrusion to the right at L5-L6, and
facet osteoarthritis at L4-L5. On August 15, 2012, Dr. Hall changed the treatment plan to include
chiropractic care two times per week for three weeks and then one time per week for six weeks.


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        Abdi Ghodsi, M.D., evaluated Mr. Kellison on January 23, 2013, at the request of Dr.
Hall. Mr. Kellison presented with complaints of lower back pain and lower extremity radicular
symptoms. Dr. Ghodsi noted the 2001 discectomy. However, Mr. Kellison denied having any
lower back pain since that time. Dr. Ghodsi diagnosed low back pain, degeneration of lumbar
intervertebral disc, and lumbosacral neuritis/radiculopathy. He recommended a pain clinic
consultation with Sarah Limer, FNP, BC, who evaluated Mr. Kellison on February 6, 2013. She
diagnosed low back pain, lumbar arthropathy, lumbar degenerative disc disease, lumbar
radiculitis, myofascial pain, and pain of the thoracic spine. She recommended epidural steroid
injections, use of physical therapy in the future, and a thoracic spine MRI. Ms. Limer noted the
exam was limited due to suboptimal effort by Mr. Kellison.

        Marsha Bailey, M.D., performed an independent medical evaluation on March 27, 2014.
She diagnosed chronic left shoulder pain and limited range of motion as well as chronic low back
pain without true radiculopathy. In Dr. Bailey’s opinion, Mr. Kellison sustained simple sprains
and strains to his lumbar spine and lower thoracic spine as a result of the work injury. There was
no indication of a herniated disc or nerve root compression on the August 7, 2012, MRI. She
recommended Mr. Kellison have a left shoulder MRI and follow-up with an orthopedist for his
left shoulder. She recommended epidural injections or facet injections for the lumbar spine. She
did not recommend any specific treatment for the thoracic spine. In Dr. Bailey’s opinion, the
prognosis was not good due to the length of time Mr. Kellison had been symptomatic, his high
pain focus, and his elevated perceived disability. She found that his subjective complaints
grossly outweighed the objective findings.

        The Office of Judges entered an Order on February 5, 2015, regarding seven decisions of
the claims administrator. In the Order, the Office of Judges affirmed, in part, and reversed, in
part, the decision of the claims administrator adding lumbar sprain/strain as a compensable
condition but denying the addition of thoracic sprain/strain and lumbar radiculitis/radiculopathy
as compensable conditions. It reversed the decision in regard to the denial of the addition of
thoracic sprain/strain as a compensable condition. In doing so, the Office of Judges relied on the
medical records of Dr. Hall and the medical reports of Dr. Ghodsi and Dr. Bailey. It noted that
Dr. Hall’s medical records showed Mr. Kellison was being treated for mid to low back pain and
he listed thoracic strain/sprain as a secondary diagnosis. Dr. Ghodsi diagnosed thoracic spine
pain. Additionally, Dr. Bailey determined Mr. Kellison sustained a thoracic sprain following the
incident in physical therapy. Therefore, the Office of Judges determined that Mr. Kellison had
established that he developed thoracic sprain/strain in the course of and resulting from his
employment.

        The Office of Judges affirmed the claim administrator’s decision denying the addition of
lumbar radiculitis/radiculopathy as a compensable condition. It determined that Mr. Kellison had
not established that he developed lumbar radiculitis/radiculopathy in the course of and resulting
from his employment. The Office of Judges relied on the medical records of Dr. Hall and the
medical reports of Dr. Ghodsi and Dr. Bailey. The medical records of Dr. Hall showed that Mr.
Kellison did not establish a consistent pattern of pain radiating to the lower extremities until six
months after the physical therapy incident, Additionally, there was no diagnosis of lumbar
radiculopathy until Dr. Ghodsi’s diagnosis on January 23, 2013, which was nine months after the
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physical therapy incident. Additionally, Dr. Bailey found no evidence of a herniated disc or
nerve root compression when she reviewed the August 7, 2012, MRI. Moreover, the medical
records showed Mr. Kellison has had surgery at the L5 level and has marked degeneration at the
L5-L6 level. As the root of the radiating pain was the L5 level. The Office of Judges determined
that the radiculopathy was brought on by degenerative changes. Moreover, as the radiating pain
was not consistent until six months after the physical therapy incident, it was not an aggravation
of the pre-existing degenerative changes.

         The Office of Judges affirmed the claims administrator’s decision denying physical
therapy and/or chiropractic care after July 26, 2012. It determined Mr. Kellison was only entitled
to medical treatment for the period from June 26, 2012, through July 26, 2012. In making this
determination, it relied on West Virginia Code of State Rules §85-20-46.4 (2006) which states,
in part:

               If care continues to the thirtieth day and the injured worker lost no
               time or is back to work, shows significant documented functional
               and clinical signs of improvement, and has not reached maximum
               medical improvement, continued care is appropriate.

The Office of Judges stated that Mr. Kellison lost time from work after the physical therapy
incident, eventually quit the position, and has not returned to work. It then relied on West
Virginia Code of State Rules §85-20-46.3 which disallows physical medicine treatment past the
forty-fifth day unless a consulting physician recommends further care. The consulting physician
in this case did not recommend further care. Therefore, it was proper for the claims administrator
to deny authorization of chiropractic care after July 26, 2012.

        The Office of Judges reversed and remanded the June 6, 2014, and June 16, 2014,
decisions of the claims administrator closing the claim for temporary total disability benefits.
The Office of Judges determined the claims administrator had closed the claim for temporary
total disability benefits prior to thoracic sprain/strain being added as a compensable condition.
Temporary total disability benefits were paid for the period from June 16, 2012, through
February 6, 2013. Therefore, the claims administrator needed to evaluate whether temporary
total disability benefits should have been extended beyond February 6, 2013, due to the thoracic
sprain/strain.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order. After review, we agree with the reasoning of the Office of Judges
and the conclusions of the Board of Review. The medical evidence shows Mr. Kellison sustained
a thoracic strain/sprain while he was being treated for his work injury. Thoracic strain/sprain
should be added as a compensable condition, and the claims administrator should determine if
any additional temporary total disability benefits should be paid as the result of this condition
being added to the claim. The medical evidence also shows Mr. Kellison has received
chiropractic treatment for his lumbar spine in accordance with West Virginia Code of State
Rules.

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        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: August 11, 2016

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




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