                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
BLANCHE K. STUTLER,                                                                June 8, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 16-0464 (BOR Appeal No. 2051035)
                   (Claim No. 2013017267)

WEST VIRGINIA UNITED HEALTH SYSTEMS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Blanche K. Stutler, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. West Virginia United Health Systems, by James W. Heslep, its
attorney, filed a timely response.

        The issue on appeal is whether additional medical benefits should be authorized in the
claim. This appeal originated from the July 21, 2015, claims administrator’s decision denying the
request for a referral to Russell Biundo, M.D., and bilateral lumbar transformainal epidural
steroid injections at L2-S1. In its December 9, 2015, Order, the Workers’ Compensation Office
of Judges affirmed the decision. The Board of Review’s Final Order dated March 24, 2016,
affirmed the Order of the Office of Judges. 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. Stutler, a food service worker, was injured in the course of her employment on
December 17, 2012, when she tripped over a telephone wire behind the counter where she
worked. She was taken to the emergency room at United Hospital Center and underwent
diagnostic testing for her wrist, knee, and thoracic and lumbosacral spines. Ms. Stutler
subsequently filed a claim for benefits in which the physician’s section listed the diagnoses as
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unspecified backache, contusion of the right knee, left wrist contusion, and sprain of muscle. The
claims administrator held the claim compensable for right knee, left wrist contusion, and muscle
sprains on January 8, 2013.

        Ms. Stutler has a history of pre-existing conditions in her spine. Diagnostic testing
performed on April 8, 2005, revealed advanced degenerative disc changes at L5-S1 with a disc
protrusion at L4-5 and disc bulges at L2-3 and L3-4. At that time, she was prescribed Lortab for
her low back pain. X-rays taken on the date of injury revealed mild sclerosis involving the
superior endplate of L2 without height loss. Additionally, mild bilateral facet degenerative
changes involving the lower lumbar levels were noted.

       Following the injury, Ms. Stutler continued to suffer pain in her low and mid back. On
July 26, 2013, the claims administrator authorized a pain management consultation for low back
pain. Ms. Stutler presented to Darya Beheshtin, M.D. Dr. Beheshtin noted that Ms. Stutler was
experiencing low back pain and muscle spasms in her back close to her bra line. Ms. Stutler also
began seeing Koshy Mathai, M.D., regarding her compensable injury. On August 16, 2013, Dr.
Mathai noted that Ms. Stutler had been referred to his office for mid and low back pain she had
experienced since her December 17, 2012, injury. Dr. Mathai diagnosed Ms. Stutler as suffering
from low back pain, left lumbosacral radicular pain syndrome, lumbar disc disease, lumbar facet
arthropathy, and chronic pain syndrome. He indicated that he would schedule Ms. Stutler for a
lumbar epidural steroid injection. Regarding her mid back pain, Dr. Mathai indicated he would
consider referring her for an MRI of the thoracic spine.

       On August 26, 2013, United Health Center Orthopedics completed a diagnosis update
requesting that thoracic back pain be added as a compensable component of the claim. The
claims administrator did not respond to this request for over two years, which has caused some
of the confusion regarding this claim. However, the claims administrator did respond to Dr.
Mathai’s request for a lumbar epidural steroid injection. On September 11, 2013, the claims
administrator authorized lumbar epidural steroid injections from September 6, 2013, through
October 30, 2013. The injections were authorized again from December 19, 2013, through
January 30, 2014.

        Ms. Stutler continued seeing Dr. Mathai for low and mid back pain. On several
occasions, Dr. Mathai requested additional epidural steroid injections which were denied by the
claims administrator in 2014. The reasons given for the denial were that it was not recommended
to treat a lumbar sprain/strain and that a previous independent medical evaluation1 report had
placed Ms. Stutler at maximum medical improvement and suggested that no further treatment
was required. On July 10, 2014, she saw Dr. Mathai and indicated that her low back pain had
increased. His assessment listed thoracic back pain first and low back pain second. Dr. Mathai
indicated that he would request bilateral lumbar transforaminal steroid injections along with a
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  The independent medical evaluation performed by Sushil Sethi, M.D., placed Ms. Stutler at maximum medical
improvement and assessed 6% whole person impairment for the lumbar spine and left wrist. The claims
administrator granted a 6% permanent partial disability award and the Office of Judges affirmed the award.
However, the Board of Review reversed the Order and vacated the permanent partial disability award, stating that a
decision on the compensability of the thoracic spine must first be decided. The award is still currently vacated.
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referral to Dr. Biundo for further evaluation and management of her current symptoms. Dr.
Mathai indicated that his request for injections had been denied even though he had shown there
was medical evidence of its necessity and thus did not understand the denials. He expressed his
confusion again at subsequent appointments with Ms. Stutler dated November 3, 2014; January
27, 2015; and April 30, 2015. At the April 30, 2015, appointment, Dr. Mathai noted that
Workers’ Compensation should address whether the thoracic spine should be treated. He
reiterated his desire to proceed with the injections and the referral to Dr. Biundo and stated he
did not understand why the referral was being denied as he had provided a very lengthy
description of why the treatment was reasonable as per a July 10, 2014, office visit.

        On July 21, 2015, the claims administrator denied the request for a referral to Dr. Biundo
and the authorization of the bilateral transforaminal steroid injections. The reasoning for the
denial remained the same, indicating that the independent medical evaluation showed Ms. Stutler
no longer required further treatment.

        On November 12, 2015, Ms. Stutler testified at an expedited hearing before the Office of
Judges. She asserted that she had not reached maximum medical improvement and deserved to
benefit from further treatment. Ms. Stutler noted that the requests of Dr. Mathai were aimed at
treating her low and mid back pain which were a result of her compensable injury. Counsel for
the employer noted that the thoracic spine had never been added as a compensable component of
the claim. The employer argued that the requested treatment was aimed at treating either non­
compensable conditions or pre-existing conditions. Ms. Stutler rebutted that she had tried to have
thoracic back pain added to the claim via a diagnosis update from August 26, 2013, but a claims
administrator had not responded.

        On December 9, 2015, the Office of Judges affirmed the July 21, 2015, claims
administrator’s decision denying the epidural steroid injections and the referral to Dr. Biundo.
The Office of Judges began by noting that the compensable conditions in this case are confusing
due to the failures of the claims administrator and the initial treating physician. While low back
sprain/strain was never listed as a compensable condition, there appears to be a general
acceptance by the parties that it was compensable for this diagnosis. Regarding the thoracic
spine, Ms. Stutler submitted a request to have it added to the claim but the claims administrator
had never responded, which caused confusion in the course of treatment. The Office of Judges
found Dr. Mathai’s requests for the epidural steroid injections to be unclear as he never
specifically attributed the need for treatment to her compensable injury. With Ms. Stutler’s
extensive pre-existing conditions, the Office of Judges found that absent more information from
Dr. Mathai, it was most likely the treatment was related to the pre-existing conditions. The
Office of Judges noted that more information would have been helpful in regard to the referral to
Dr. Biundo as well. It found that Dr. Mathai did not state in specific terms why the referral was
reasonable, necessary, and related to the compensable injury. While the Office of Judges noted
that the claims administrator was partly to blame, it ultimately held that Ms. Stutler failed to
meet her burden of proof. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order on March 24, 2016.


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        We disagree with the reasoning and conclusions reached by the Office of Judges and
affirmed by the Board of Review. Following the filing of this appeal, the Board of Review
rendered a decision on August 8, 2016, in which it reversed a claims administrator’s decision and
an Office of Judges’ Order denying a request to add the thoracic spine to the claim. In the
decision, the Board of Review noted that the Office of Judges’ Order was wrong in view of the
reliable, probative, and substantial evidence on the whole record. It noted that Ms. Stutler’s
complaints of thoracic pain following the compensable injury had been documented several
times. She was prescribed medicine for lumbar/thoracic pain in 2013. Dr. Beheshtin noted that
she had low back pain and muscle spasms in the thoracic region. Additionally, Dr. Mathai noted
that she began experiencing mid and low back pain after the December 17, 2012, injury. A
diagnosis update by Joseph Fazalare, M.D., requested that the thoracic spine be added to the
claim and attributed it to the compensable injury. In light of the evidence, the Board of Review
concluded Ms. Stutler suffered a thoracic back injury in the course of and resulting from her
employment.

        Following the reasoning of the Board of Review in its August 8, 2016, decision, the
referral to Dr. Biundo and the requests for lumbar transforaminal epidural steroid injections are
reasonably related and medically necessary to treat the compensable injury. The Board of
Review has indicated that the thoracic spine is now a compensable component of the claim. Dr.
Mathai requested the referral to Dr. Biundo on July 10, 2014, based on Ms. Stutler’s current
presentation. In his notes, Dr. Mathai included thoracic back pain and low back pain as the
primary and secondary diagnoses, respectively. Dr. Mathai also repeatedly expressed his
confusion as to why his requests were being denied in light of his explanations as to why the
treatment was necessary. A large portion of the argument made by the employer and the
reasoning of the Office of Judges’ December 9, 2015, Order rely on the belief that the thoracic
spine is not compensable. That is no longer the case. In reviewing the medical evidence of
record, it is clear that Ms. Stutler experienced thoracic and lumbar pain following the
compensable injury. Dr. Mathai noted those as his primary and secondary diagnoses and planned
the treatment accordingly. The referral to Dr. Biundo is necessary in order to treat Ms. Stutler’s
thoracic spine injury and to receive clear guidance in regards to a future permanent partial
disability award.

        The request for bilateral lumbar transforaminal epidural steroid injections is also
reasonably related and medically necessary to treat the compensable injury. The claims
administrator failed to specify which regions of the spine were compensable and merely listed
muscle sprains. Subsequently, the claims administrator consistently approved treatment for the
lower back. On July 26, 2013, authorization for a pain management consultation for the low back
was granted. The lumbar transforaminal epidural steroid injections were authorized from
September 6, 2013, through October 30, 2013, and from December 19, 2013, through January
30, 2014. The claims administrator denied subsequent requests for the injections based on Dr.
Sethi’s independent medical evaluation. However, the Board of Review has since determined
that the permanent partial disability award based on Dr. Sethi’s report was prematurely granted.
The claims administrator was incorrect to rely on the independent medical evaluation report.
Both the Office of Judges and Board of Review have noted that the parties are in general
agreement that the lumbar spine has been included as a compensable body part under this claim,
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although no specific Order has been designated indicating a precise diagnosis. Based on this
general agreement and the prior actions of the claims administrator authorizing treatment for the
lumbar spine, the bilateral lumbar transformaminal epidural steroid injection is approved.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to grant the referral to Dr.
Biundo and approve the bilateral lumbar transforaminal epidural steroid injection.



                                                                     Reversed and Remanded.

ISSUED: June 8, 2017

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

Justice Elizabeth D. Walker, Disqualified




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