                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 August 24, 2017
SHELIA M. BROWN,                                                               RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-0806 (BOR Appeal No. 2051166)
                   (Claim No. 2013028806)

CAMC TEAYS VALLEY HOSPITAL,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Shelia M. Brown, by Patrick K. Maroney, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. CAMC Teays Valley Hospital, by
H. Dill Battle III, its attorney, filed a timely response.

       The issue on appeal is whether Ms. Brown is entitled to additional medical benefits. This
appeal originated from the May 6, 2015, claims administrator’s decision denying maintenance
treatment. In its February 26, 2016, Order, the Workers’ Compensation Office of Judges
affirmed the decision. The Board of Review’s Final Order dated August 2, 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 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.

       Shelia M. Brown, a Health Unit Coordinator, was injured in the course of her
employment on April 3, 2013, when she attempted to lift a patient and felt a pop in her lower
back followed by a burning sensation. Ms. Brown sought treatment a few weeks later and was
diagnosed with sprain of the lumbosacral joint ligament, displacement of lumbar intervertebral
disc without myelopathy, sciatica, and spasm of muscle. An MRI of the lumbar spine taken on
April 29, 2013, revealed a small central disc protrusion at L5-S1 touching the nerve roots at this

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level, causing mild canal narrowing. On May 8, 2013, the claims administrator held the claim
compensable for sprain of the lumbosacral joint ligament.

        Ms. Brown sought the opinion of two neurosurgeons. On August 20, 2013, Panos
Ignatiadis, M.D., evaluated Ms. Brown. He noted that the MRI findings revealed mild
degenerative changes at L3-4 and L4-5 and a small central protrusion at L5-S1, which were not
sufficient to account for Ms. Brown’s symptoms or to render her for surgical proposition. Dr.
Ignatiadis recommended physical therapy and work conditioning, as well as undergoing a
functional capacity evaluation. He concluded that Ms. Brown probably had a lumbar sprain with
concomitant central disc protrusion, albeit small at L5-S1, and dormant pre-existing mild
degenerative changes at L3-4 and L4-5, aggravated by the work-related injury. On November 4,
2013, Robert Crow, M.D., evaluated Ms. Brown and stated that he would not suggest surgical
intervention in the form of a laminectomy, discectomy, or fusion without further imaging. He
recommended an injection on the right S1 nerve root along with continued physical therapy.

        On November 5, 2013, Ms. Brown underwent an EMG study. The report indicated that
the study was normal for the legs and neither neuropathy nor radiculopathy were demonstrated.
On November 12, 2013, an MRI was performed and compared to the one taken on April 29,
2013. There was significant improvement at the L5-S1 level.

        On January 9, 2014, Ms. Brown underwent an independent medical evaluation performed
by Marsha Bailey, M.D. Ms. Brown reported constant right lower back pain with radiation into
her right buttocks, right posterior and lateral leg, and right foot. She also complained of
numbness and her leg giving out, which resulted in repeated falls. Dr. Bailey diagnosed Ms.
Brown with a history of chronic lower back pain without true radiculopathy. Dr. Bailey noted
that Ms. Brown had a substantial amount of symptom magnification at the time of the evaluation.
Ms. Brown’s subjective complaints grossly outweighed the objective findings and were
inconsistent with the MRI findings. Dr. Bailey opined that Ms. Brown’s repeated falls could not
be attributed to the compensable injury. Dr. Bailey stated that due to Ms. Brown’s substantial
amount of symptom magnification, meager MRI findings, normal nerve conduction studies, and
failure of all reasonable treatment to date, it was highly unlikely that any further treatment would
improve her symptoms. Dr. Bailey felt that any treatment would not be medically necessary for
her compensable injury and found that Ms. Brown had reached maximum medical improvement.

        Ms. Brown underwent a functional capacity evaluation on February 19, 2014. Ms. Brown
tested at the light physical demand level with lifting of twenty pounds on an occasional and
frequent basis. The evaluator found that there were some remarkable findings that may suggest
symptom magnification and submaximal effort, and a repeat evaluation may be warranted for
assessment of consistency.

       Throughout the course of her injury, Ms. Brown sought treatment from Anthony Erwin,
D.C. Dr. Erwin assessed displacement lumbar intervertebral disc, thoracic pain, sciatica, and
cervical disc bulge. He subsequently completed a diagnosis update in an effort to have these
diagnoses added to the claim. On July 22, 2014, the claims administrator denied the request to

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add the secondary diagnoses to the claim, and the Office of Judges subsequently affirmed the
decision.

        Dr. Erwin authored a letter on August 21, 2014, stating that Ms. Brown’s initial
diagnoses were lumbar sprain/strain, displaced lumbar intervertebral disc, sciatica, and muscle
spasm. A lumbar MRI taken on April 29, 2013, demonstrated L3-4 mild diffuse posterior
extension of the disc and L5-S1 seemed to have central disc protrusion, and the radiologist said it
touched the central nerve roots causing mild canal narrowing. Dr. Erwin said there was no
mention of degenerative changes. A second lumbar MRI taken on November 12, 2013, found
partial desiccation and narrowing with central disc herniation at L5-S1. Dr. Erwin last saw Ms.
Brown on July 1, 2014, and she reported continued lower back pain with radiation. He opined
that the overall outlook for Ms. Brown was poor and that she suffered from a permanent
disabling condition as a result of the work-related injury. Dr. Erwin recommended periodic care
for chronic flare-ups of pain and thus requested authorization for continued treatment.

        Ms. Brown testified in a deposition on October 30, 2014, that prior to the compensable
injury, she never had any problems, nor had she been diagnosed with any degenerative back
issues. After the injury, her pain worsened so that she could not sit, stand, or lay down. Ms.
Brown stated that she continued to have low back issues, with pain in her lower back into her
tailbone and pain into her buttocks, hip, and down her right leg. Ms. Brown stated it constantly
burns and she has electric-like feelings and muscle spasms. She has difficulty sleeping, walking,
and performing many normal activities.

       On May 6, 2015, the claims administrator denied the maintenance treatment requested by
Dr. Erwin. The Order stated that the request was denied on the basis that Dr. Bailey opined that
Ms. Brown had reached maximum medical improvement. Further, it was found that Ms. Brown
was far outside the guidelines for a simple sprain/strain of the lumbar spine and that the
complaints could not be attributable to a simple sprain/strain.

        Dr. Bailey testified in a deposition on August 11, 2015, that she agreed with the
compensable diagnosis of lumbosacral joint ligament sprain. She did not agree with the other
diagnoses Dr. Erwin was attempting to have added to the claim. Dr. Bailey opined that the disc
protrusions and bulges indicated by the lumbar MRIs were normal, age-related findings and that
there were not any acute findings to suggest any type of injury-related pathology. It was Dr.
Bailey’s opinion that no additional consultation or maintenance treatment was medically
necessary. She found that Ms. Brown had long ago reached maximum medical improvement.

        On February 26, 2016, the Office of Judges affirmed the claims administrator’s decision
denying maintenance treatment. The Office of Judges noted that Dr. Erwin requested
maintenance treatment. Dr. Erwin opined that Ms. Brown’s overall outlook was poor and that
she suffered from a permanent disabling condition as a result of the compensable injury. Thus,
Dr. Erwin recommended periodic care for flare-ups of pain and requested continued treatment
with his practice. Dr. Erwin’s assessment included the diagnoses of displacement of lumbar
intervertebral disc without myelopathy, pain in thoracic spine, sciatica, and displacement of
cervical intervertebral disc without myelopathy. However, the Office of Judges previously
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decided on December 11, 2015, that these secondary conditions were not compensable
components of the claim. In the current claim, the Office of Judges found Dr. Bailey’s testimony
to be persuasive. It was her opinion that no additional maintenance treatment was necessary. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on August 2, 2016.

       We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. The only compensable condition in this claim is sprain of the lumbosacral joint
ligament. Dr. Erwin requested additional maintenance treatment based on diagnoses that have
been deemed non-compensable. Further, Dr. Bailey has opined that Ms. Brown reached
maximum medical improvement long ago and thus needs no further medical treatment.

        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 24, 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




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