                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MARY ANN ROBERTS,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0058 (BOR Appeal No. 2049549)
                   (Claim No. 2003001392)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

AFFORDABLE ELDERLY CARE PROVIDERS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Mary Ann Roberts, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Noah A. Barnes, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 23, 2014, in
which the Board affirmed a June 2, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 12, 2013;
October 31, 2013; and August 27, 2013, decisions denying a request for a lumbar MRI; referral
to Mark Grubb, M.D.; reopening of the claim for permanent partial disability; an appointment
with Samy Sakla, M.D.; and six chiropractic visits. 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.

        Ms. Roberts, a home health care provider, was injured in the course of her employment
on March 1, 2002, while lifting a patient into bed. The claim was held compensable for lumbar
sprain/strain and sciatica, and she was awarded a 13% permanent partial disability award. Ms.
Roberts sustained a second injury to her lumbar spine on November 17, 2009. She was treated by
Dr. Sakla on December 28, 2009, and he noted that she was last seen in September of 2008. She
presented on examination with pain for the last four weeks. She denied an injury but said that she
felt a pulling at work when she was helping a patient into the shower. Ms. Roberts reported that,
prior to her second injury, she had obtained significant relief from sacroiliac injections and had
been feeling 90% better. This relief lasted up until the recent recurrence. In a report of injury,
Gerald Booth, D.C., listed the November 17, 2009, injury as lumbosacral sprain/strain, and it
was noted that the injury aggravated Ms. Roberts’s pre-existing lumbar sprain/strain. In a letter,
Dr. Booth stated that it was brought to his attention that Ms. Roberts had not received treatment
for the 2002 injury for approximately eighteen months. It was his opinion that a single fortuitous
event occurred on November 17, 2009, therefore, she suffered a new injury that day.

        Bill Hennessey, M.D., performed an independent medical evaluation for the 2002 injury
on July 23, 2010. He found that Ms. Roberts’s current complaints are not the result of the 2002
injury. He determined that her lumbar strain had fully resolved and that she no longer suffered
from sciatica. He opined that she had reached maximum medical improvement and that no
further treatment was necessary. In a letter shortly thereafter, Dr. Hennessey stated that he was
made aware of Ms. Roberts’s intervening injury. He reiterated that she had no evidence of
residual impairment on examination and that further treatment for the lower back was not
necessary. The Office of Judges held on July 25, 2011, that Ms. Roberts sustained an intervening
compensable injury on November 17, 2009. In June of 2011, Dr. Sakla noted that Ms. Roberts
had been experiencing back pain since her November 17, 2009, injury. He diagnosed her with
lumbar sprain and sprain of the sacroiliac region and recommended that she receive sacroiliac
injections to help with the pain. The request was denied in the instant claim by the claims
administrator and the decision was affirmed by the Office of Judges on January 9, 2012. The
Office of Judges found that the injections could not be authorized in the 2002 claim because Dr.
Sakla opined that they were necessary for the 2009 injury. The decision was affirmed by the
Board of Review and then by this Court on January 14, 2014.

        In an August 10, 2011, chiropractic statement, Dr. Booth asserted that Ms. Roberts
requires chiropractic care. He listed both the 2002 and 2009 injuries on the form but stated that it
was reasonable and necessary treatment because she suffered a sprain/strain on November 17,
2009. In a diagnosis update it appears that he requested that lumbar sprain/strain and sacroiliac
sprain/strain be added to both claims. The claims administrator denied a request to add sacroiliac
sprain/strain and to authorize chiropractic treatment for the March 1, 2002, injury because Ms.
Roberts sustained an intervening injury in 2009. In letters from July of 2013 through October of
2013, Dr. Booth requested various treatments for Ms. Roberts’s lower back. He asserted that the
treatment was necessary for both the 2002 and the 2009 compensable injuries.

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         The claims administrator denied a request for an appointment with Dr. Sakla, six
chiropractic visits, and an MRI on August 27, 2013. On October 31, 2013, it denied a second
request for an MRI and a consultation with Dr. Grubb. Finally, on November 12, 2013, the
claims administrator denied a request for a lumbar MRI, a referral to Dr. Grubb, and reopening
of the claim on a permanent partial disability basis. The Office of Judges affirmed the decisions
in its June 2, 2014, Order.

        The Office of Judges found that in accordance with previous Office of Judges’ Orders
and the evidentiary record, the 2002 injury did necessitate significant multiple back surgeries,
but it is not the major cause of Ms. Roberts’s current complaints. Despite the significant
problems, the Office of Judges stated that she appeared to be doing fairly well until the
November 17, 2009, injury. The record demonstrates that the prior problems made Ms. Roberts
more susceptible to the pain that she now has as a result of the compensable injury; however, that
does not negate the fact that the necessity of the current treatment did not arise out of the 2002
injury. All of the requests for treatment were determined to be the result of problems she
developed after the 2009 injury. The Office of Judges also found that the evidence shows that the
claim should not be reopened on a permanent partial disability basis for the 2002 injury. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on December 23, 2014.

        On appeal, Ms. Roberts argues that she suffered two separate injuries to her lumbar spine
and payment for treatment has been refused under both claims. She asserts that she is in need of
further treatment as a result of a combination of both compensable injuries. The West Virginia
Office of the Insurance Commissioner argues that Ms. Roberts sustained a new injury on
November 17, 2009, and has failed to introduce evidence to show that the 2002 injury is the
cause of her current symptoms.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidentiary record clearly indicates that Ms. Roberts was injured on
March 1, 2002, and required significant treatment due to the lumbar injury. However, her
symptoms had largely resolved prior to the intervening November 17, 2009, injury as is
evidenced by Dr. Sakla’s December 28, 2009, treatment note. Ms. Roberts’s current symptoms
appear to be the result of the November 17, 2009, compensable injury and not the March 1, 2002
injury that is the subject of the instant case. The Office of Judges and Board of Review were
correct to deny the treatment as related to the 2002 injury and to deny a reopening of the claim
for permanent partial disabilty benefits.

        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: November 4, 2015
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CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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