                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

JAMES GANDEE,                                                                       FILED
                                                                                  March 30, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0307 (BOR Appeal No. 2050721)
                   (Claim No. 2014034776)


TOYOTA MOTOR MANUFACTURING WV, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner James Gandee, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Toyota Motor Manufacturing WV,
Inc., by James W. Heslep, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 1, 2016, in
which the Board affirmed a July 22, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 15,
2014, decision to deny authorization for physical therapy. 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. Gandee, an assembly line worker at Toyota Motor Manufacturing WV, Inc., injured
his right shoulder at work on May 2, 2014. Mr. Gandee underwent an MRI of the right shoulder
on August 5, 2014, which revealed degenerative changes and a subchondral cyst in the superior
lateral aspect of the humeral head. There was no evidence of a rotator cuff tear, labral tear, or
bone marrow edema. On September 2, 2014, William McCormick, M.D., examined Mr. Gandee

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and suggested that further physical therapy would improve his range of motion. Dr. McCormick
authored a request for physical therapy due to the popping and stiffness in the right shoulder.

       Introduced into evidence was a September 12, 2014, utilization review performed by Dr.
Goldsmith with Genex. Dr. Goldsmith stated that Mr. Gandee suffered acute shoulder pain at
work and subsequently completed twenty-four physical therapy visits. He also noted that the
MRI arthrogram revealed findings of degenerative change consistent with normal disease of life
and no evidence of rotator cuff tear or labral tear. Dr. Goldsmith opined that the request was not
medically necessary and significantly exceeded the treatment guidelines contained in West
Virginia Code of State Rules § 85-20-40.5 (2006). Several days later, Mr. Gandee returned to Dr.
McCormick with pain in his shoulder. Dr. McCormick advised him to work in a modified
manner and attempt physical therapy on his own.

        On October 1, 2014, Genex issued another review reiterating that the request for physical
therapy should be denied because Mr. Gandee had already completed twenty-four physical
therapy sessions and there is no reason he cannot continue his rehabilitation through an
independent home regimen. The claims administrator denied the request for further physical
therapy on September 15, 2014. Marsha Bailey, M.D., examined Mr. Gandee and completed an
independent medical evaluation report on November 20, 2014, which found that Mr. Gandee’s
likely source of symptoms was a result of his short stature and continued over-shoulder motions
as opposed to the compensable work-related strain. Dr. Bailey stated that due to his persistent
symptoms a thoracic and cervical spine MRI should be performed.

        An MRI of the cervical spine performed on March 12, 2015, revealed degenerative
changes present with small endplate osteophytes and disc space height loss at multiple levels.
There was a mixed hard and soft disc complex with mild disc bulge at C4/C5 and C6/C7 without
significant spinal stenosis and no evidence of malalignment. The impression was scattered
degenerative changes in the cervical spine with some with mild disc bulges. The thoracic MRI
revealed mild, multilevel degenerative disc desiccation within the mid to lower thoracic spine
and scattered mild, multilevel disc bulges without significant central canal stenosis. The
impression stated no acute fracture, normal cord signal, and no significant degenerative
compromise of the spinal canal. On March 18, 2015, Dr. Bailey reviewed the cervical and
thoracic MRI and opined that Mr. Gandee had reached maximum medical improvement and
suffered from 2% whole person impairment.

       The Office of Judges determined that further physical therapy was not medically related
and reasonably required for the treatment of the compensable injury. The Office of Judges found
that under West Virginia Code of State Rules § 85-20-40.5 shoulder sprains/strains may require
physical therapy for up to six weeks. Further, West Virginia Code of State Rules § 85-20-4.1
(2006) provides that treatment past the treatment guidelines is presumed to be medically
unreasonable. In order for it to be shown to be reasonable:

               A preponderance of evidence, including but not limited to, detailed
               and documented medical findings, peer reviewed medical studies,
               and the elimination of causes not directly related to a compensable
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               injury or disease, must be presented to establish that treatments in
               excess of those provided for in this Rule are medically reasonable.

The Office of Judges determined that Dr. McCormick’s request that physical therapy be
approved for the purpose of improving Mr. Gandee’s range of motion does not meet the standard
set forth in West Virginia Code of State Rules § 85-20-4.1. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order. After review, we agree with the
consistent decisions of the Office of Judges and 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: March 30, 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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