                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              November 4, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
TIMOTHY C. RAMEY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0142	 (BOR Appeal No. 2049766)
                   (Claim No. 2013009682)

CLIFF’S LOGAN COUNTY COAL,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Timothy C. Ramey, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Cliff’s Logan County Coal, by H. Dill
Battle III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 20, 2015, in
which the Board affirmed an August 19, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 4, 2013,
denial of Mr. Ramey’s request for authorization of lumbar facet joint injections. Additionally, the
Office of Judges affirmed the claims administrator’s December 4, 2013, denial of Mr. Ramey’s
request for authorization of a TENS unit. Finally, the Office of Judges affirmed the claims
administrator’s December 23, 2013, denial of Mr. Ramey’s request for authorization of the pain
medication Norco. 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.

       Mr. Ramey was employed as a roof bolter with Cliff’s Logan County Coal when he
injured his lower back on October 10, 2012, while removing a bolter cable. On October 14,
2012, a lumbar spine MRI was performed. The results of that lumbar spine MRI were compared
with the results of a lumbar spine MRI performed on May 18, 2011. It was noted that the May
                                                1
18, 2011, MRI revealed degenerative disc disease and a disc protrusion at L4-5. When the two
MRIs were compared, it was further noted that a slight improvement at L4-5 had occurred. On
October 23, 2012, the claim was held compensable for a lumbar sprain/strain.

       Following the October 10, 2012, injury, Mr. Ramey sought chiropractic treatment with
Cliff Hill, D.C., who requested authorization for a TENS unit on October 16, 2013.1 On
November 18, 2013, Prasadarao Mukkamala, M.D., performed an independent medical
evaluation and opined that Mr. Ramey requires no further treatment in relation to the
compensable lumbar sprain/strain. In two separate decisions dated December 4, 2013, the claims
administrator denied the request for authorization of lumbar facet injections and also denied the
request for authorization of a TENS unit. On December 23, 2013, the claims administrator
denied the request for authorization of the pain medication Norco.

        On March 18, 2014, Jerry Scott, M.D., performed an independent medical evaluation and
opined that no further treatment is required in relation to the compensable lumbar sprain. Dr.
Scott noted that Mr. Ramey’s medical record indicates that he has been experiencing chronic
back pain since 2008, with diagnostic imaging clearly demonstrating the presence of pre-existing
degenerative changes. Dr. Scott then opined that the requested TENS unit, lumbar facet joint
injections, and the use of the medication Norco are all aimed at treating the pre-existing
degenerative changes rather than the compensable injury.

        On April 8, 2014, Dr. Hill was deposed. Dr. Hill testified that the bulging L4-5 disc is the
primary cause of Mr. Ramey’s current symptoms. He further testified that diagnostic imaging
reveals that the bulging disc pre-existed the compensable injury. Finally, Dr. Hill testified that he
recommended the use of a TENS unit to help with back pain associated with the bulging disc.

        In its Order affirming the December 4, 2013, and December 23, 2013, claims
administrator’s decisions, the Office of Judges held that Mr. Ramey has failed to demonstrate
that the requested TENS unit, lumbar facet joint injections, and the pain medication Norco are
medically necessary and reasonably required for the treatment of the compensable lumbar sprain.
The Board of Review affirmed the reasoning and conclusions of the Office of Judges in its
decision dated January 20, 2015.

        The Office of Judges found that Mr. Ramey has not submitted any evidence
demonstrating that the requested lumbar facet injections and the medication Norco are medically
necessary for the treatment of the compensable injury. Further, the Office of Judges noted that
the only evidence of record pertaining to the requests for authorization of lumbar facet injections
and the medication Norco, namely the reports of Dr. Mukkamala and Dr. Scott, indicate that no
further treatment for the compensable lumbar sprain is needed. Regarding the request for

1
  Mr. Ramey also sought pain management care from Francis Saldanha, M.D., who authored
requests for authorization of lumbar facet injections and the pain medication Norco, both of
which are at issue in the instant appeal. However, neither Dr. Saldanha’s treatment notes nor his
requests for authorization of lumbar facet injections and the medication Norco were submitted
into evidence before the Office of Judges.
                                                 2
authorization of a TENS unit, the Office of Judges noted that Dr. Hill testified that the use of the
TENS unit is aimed at relieving symptoms associated with the L4-5 disc protrusion. The Office
of Judges took judicial notice of its decision dated July 3, 2014, in which it affirmed the claims
administrator’s denial of Mr. Ramey’s request to add L4-5 disc displacement as a compensable
diagnosis. The denial of the request to add L4-5 disc displacement as a compensable diagnosis
was not appealed to this Court. After noting that a TENS unit has been requested for the
treatment of the non-compensable L4-5 disc protrusion, the Office of Judges determined that the
evidence of record fails to establish that the requested TENS unit is medically necessary for the
treatment of the compensable lumbar sprain. We agree with the reasoning and conclusions of the
Office of Judges, as affirmed by 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: November 4, 2015

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




                                                 3
