                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                March 27, 2013

                                                                            RORY L. PERRY II, CLERK

MAXINE ANN MELLINGER,                                                     SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1012 (BOR Appeal No. 2045424)
                    (Claim No. 2003053188)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Maxine Ann Mellinger, by Patrick K. Maroney, her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Homer Laughlin China
Company, by Lucinda Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 7, 2011, in which
the Board affirmed a November 29, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 1, 2010,
decision denying Ms. Mellinger’s request for authorization of a TENS unit. 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.

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       Ms. Mellinger worked as a messenger for Home Laughlin China Company when she
injured her back on February 24, 2003. The claim was held compensable for the conditions of
lumbosacral strain and hip sprain/strain. On January 1, 2010, the claims administrator denied Ms.
Mellinger’s request for authorization of a TENS unit.

        The Office of Judges affirmed the claims administrator’s decision, and held that the
requested treatment was not medically related or reasonably required to treat the compensable
injury because the TENS unit was requested to treat pain resulting from preexisting degenerative
changes rather than the compensable seven-year-old lumbosacral strain. Ms. Mellinger disagrees
with these findings and asserts that Dr. Eddy’s medical exam is more credible regarding her
current condition than a medical exam performed three years ago by Dr. Mansour. Home
Laughlin China Company maintains that there is no reliable, probative, or substantial evidence to
support that a TENS unit was reasonably and medically required to treat Ms. Mellinger’s
compensable lumbar sprain/strain. Dr. Mansour’s report stated that the EMG performed on May
17, 2006, ruled out radiculopathy, and that the MRI performed on May 17, 2006, showed diffuse
bulging causing thecal sac compression with sensory deficits. Dr. Mansour found Ms. Mellinger
had reached maximum medical improvement and no surgical, medical intervention or treatment
would change her condition. Dr. Eddy’s medical statement reported that based on his
examination on October 5, 2009, he believed Ms. Mellinger’s condition is causally related to a
work injury and a TENS unit should be authorized, and that this service is medically and
reasonably necessary due to her continuous pain.

        The Office of Judges concluded that the medical evidence did not establish a causal
relationship between the treatment requested and the compensable injury. After considering Dr.
Mansour and Dr. Eddy’s medical reports, the Office of Judges noted that Dr. Eddy made a
factually unsupported request for authorization of a TENS unit for continued symptoms of pain.
It also noted the TENS unit was not medically related or reasonably required to treat the
compensable injury because it was requested to treat pain resulting from preexisting degenerative
changes rather than the compensable seven-year-old lumbosacral strain. The Office of Judges
further noted that the claim was found compensable for lumbosacral strain and hip sprain/strain
but not radiculopathy or displaced lumbar disc. The Board of Review reached the same reasoned
conclusions in its June 7, 2011, Order. We agree with the reasoning and conclusions of 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.




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ISSUED: March 27, 2013



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

DISSENTING:
Chief Justice Brent D. Benjamin




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