                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              October 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DOLLY PENNINGTON,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0662 (BOR Appeal No. 2048070)
                   (Claim No. 2011032824)

HEALTH MANAGEMENT ASSOCIATES,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Dolly Pennington, by Anne L. Wandling, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Health Management Associates, by
Daniel G. Murdock, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 30, 2013, in which
the Board affirmed a January 16, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 13, 2012, decision
denying authorization for an anterior discectomy with decompression of the spinal cord and
nerve roots. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        Ms. Pennington worked for Health Management Associates as a housekeeper. On April
2, 2011, she was pushing and pulling a bed when she felt pain in her back and neck. Following
the injury, an MRI was taken of her cervical spine which showed a disc protrusion at the C4-5
and C5-6 discs and a disc herniation at the C6-7 disc with a mild degree of spinal stenosis. The
claims administrator held the claim compensable for an upper back and neck injury. Ms.
Pennington then came under the care of Norman Mayer, M.D., who found that Ms. Pennington
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had pain in her neck and numbness radiating into her fingertips. Dr. Mayer found that she had
received physical therapy on her cervical spine which did not significantly reduce her pain. Dr.
Mayer suggested that Ms. Pennington undergo an anterior cervical discectomy to repair her
herniated disc and spinal stenosis. An electromyogram (EMG) was then conducted which
showed that she had C7 radiculopathy on her left side. Dr. Mayer’s request was submitted to
Kenneth Lee, M.D., who reviewed Ms. Pennington’s records and found that the requested
surgery was not medically necessary. On March 13, 2012, the claims administrator denied a
request for an anterior discectomy with decompression of the spinal cord and nerve roots based
on Dr. Lee’s report. Dr. Mayer then testified by deposition that the requested discectomy and
decompression surgery was medically necessary to treat Ms. Pennington’s cervical condition. Dr.
Mayer also stated that her cervical pain had grown progressively worse since he first began to
treat her. Adnan N. Silk, M.D., then evaluated Ms. Pennington. He found that Ms. Pennington
had a possible herniated C6-7 disc with nerve root compression. Dr. Silk also believed that these
problems were primarily related to the compensable injury. Dr. Silk, however, recommended that
she receive conservative treatment, including physical therapy, pain management, and epidural
injections prior to undergoing surgical treatment. On January 16, 2013, the Office of Judges
affirmed the claims administrator’s decision. The Board of Review affirmed the Order of the
Office of Judges on May 30, 2013, leading Ms. Pennington to appeal.

        The Office of Judges concluded that the request for cervical disc surgery was premature
and should not be authorized. The Office of Judges determined that Ms. Pennington had not fully
utilized her non-surgical treatment options, including physical therapy and pain management, as
directed by West Virginia Code of State Rules § 85-20-36.3(f) (2006). In reaching this
conclusion, the Office of Judges relied on the opinion of Dr. Silk. It also found that if these
conservative treatment methods were unsuccessful, Ms. Pennington could submit a second
request for the surgery. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

        The decision of the Board of Review was based on a material misstatement or
mischaracterization of the evidence. Ms. Pennington has demonstrated that the requested cervical
anterior discectomy with decompression is medically related and reasonably required to treat her
compensable cervical injury. The treatment notes and deposition testimony of Dr. Mayer
demonstrate that she had a disc herniation at the C6-7 disc which is related to her compensable
injury. His treatment notes further show that Ms. Pennington has cervical radiculopathy and her
pain has progressed despite some conservative treatment which included physical therapy. Dr.
Mayer’s diagnosis of Ms. Pennington’s cervical problems is supported by the MRI and EMG
evidence in the record. The decision of the Board of Review did not sufficiently consider
evidence in both Dr. Mayer and Dr. Silk’s reports which showed that Ms. Pennington had
already received physical therapy and that this conservative treatment method did not
significantly relieve her pain. The opinion of Dr. Mayer and the objective evidence in the record
demonstrate that Ms. Pennington is entitled to the requested cervical discectomy under West
Virginia Code of State Rules § 85-20-36.3(f).

       For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
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Therefore, the decision of the Board of Review is reversed and remanded with instructions to
authorize the requested anterior discectomy with decompression of the spinal cord and nerve
roots.

                                                                   Reversed and Remanded.

ISSUED: October 7, 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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