                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 5, 2013

                                                                            RORY L. PERRY II, CLERK

WILLIAM J. EVERSON,                                                       SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0713	 (BOR Appeal No. 2045224)
                   (Claim No. 2004217652)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

TYGARTS VALLEY CONSERVATION DISTRICT,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner William J. Everson, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Tygart Valley Conservation District,
by Gary Nickerson and James Heslep, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 31, 2011, in
which the Board affirmed an October 19, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 20, 2010,
decisions denying Mr. Everson’s request to add myofascial pain syndrome as a compensable
component, and also denying his request to authorize additional trigger point injections and
additional 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.
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         On February 14, 2007, Mr. Everson injured his left upper extremity when he fell while
installing carpet. On March 12, 2007, the claim was held compensable. Mr. Everson is
requesting that myofascial pain syndrome be added as a compensable component, and that
authorization for trigger point injections and physical therapy be granted, per the opinion of Dr.
Fahim.

        In its Order affirming the claims administrator’s May 20, 2010, decisions, the Office of
Judges found that the preponderance of the evidence does not establish a connection between
myofascial pain syndrome and the compensable injury. Even though Dr. Grady found Mr.
Everson to be at maximum medical improvement on December 16, 2009, Dr. Fahim asserts that
myofascial pain syndrome should nevertheless be added as a compensable component because
its symptoms were only able to manifest due to pain management provided by a spinal cord
stimulator. However, Dr. Mukkamala stated in a March 26, 2010, physician review that
myofascial pain syndrome should not be added as a compensable component because it is a new
diagnosis occurring after Mr. Everson reached maximum medical improvement, and also stated
that there is no clinical justification for adding the diagnosis. Additionally, the Office of Judges
and Board of Review properly affirmed the claims administrator’s May 20, 2010, decision that
additional physical therapy and trigger point injections should not be authorized because they are
being requested to treat myofascial pain syndrome which, as discussed previously, was properly
denied as a compensable component of the claim.

        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: February 5, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum




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