                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

STACY MACKEY,                                                                       FILED
Claimant Below, Petitioner                                                        March 3, 2017
                                                                              RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0242 (BOR Appeal No. 2050716)
                   (Claim No. 2014030080)

KOHL’S DEPARTMENT STORE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Stacy Mackey, by Robert L. Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Kohl’s Department Store, Inc., by
Jeffrey B. Brannon, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 12, 2016, in
which the Board reversed a July 14, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s December 2, 2014,
decision denying authorization for additional physical therapy treatment. 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.

       Ms. Mackey, a merchandiser, was injured in the course of her employment on April 2,
2014, when she lifted some men’s suits over her head to a railing. The claims administrator held
the claim compensable for a neck sprain on April 23, 2014, and Ms. Mackey was treated
conservatively with physical therapy treatments from May 2, 2014, through September 15, 2014.



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        On September 18, 2014, Ms. Mackey underwent an independent medical evaluation
performed by Joseph E. Grady II, M.D. Dr. Grady found that Ms. Mackey had reached
maximum medical improvement and did not require further treatment. Her range of motion was
normal, and she had no residual impairment as a result of the compensable injury. He noted that
if Ms. Mackey re-exacerbated her injury, she may benefit from additional physical therapy. On
October 1, 2014, Ms. Mackey saw Dr. Grady because she was dissatisfied that her physical
therapy treatments had ceased. Dr. Grady explained to her that he did not believe additional
physical therapy sessions would resolve her symptoms. Dr. Grady wrote a letter to supplement
his prior report and stated that he did not recommend additional physical therapy treatments. He
stated that Ms. Mackey’s compensable injury was a neck sprain, and the official guidelines state
that she was entitled to ten visits over eight weeks. Ms. Mackey had already met or exceeded
those guidelines.

       On October 29, 2014, Ms. Mackey was treated by Justin Morgan, PA-C. Mr. Morgan
noted that there was no tenderness and Ms. Mackey had normal strength against resistance in the
neck and shoulder. He stated that she had a muscle spasm over the trapezius muscle and
diagnosed a neck sprain/strain. Mr. Morgan recommended physical therapy. The claims
administrator denied Ms. Mackey’s request for additional physical therapy treatments on
December 2, 2014, based on Dr. Grady’s recommendation.

       The Office of Judges reversed the claims administrator’s decision on July 14, 2015. The
Office of Judges found that Dr. Grady stated in his September 18, 2014, evaluation that Ms.
Mackey may benefit from additional physical therapy treatments if she re-exacerbated her injury.
It found that this was in contradiction to his supplemental letter in which he stated he did not
recommend additional physical therapy because Ms. Mackey had reached maximum medical
improvement. The Office of Judges determined Dr. Grady’s letter was not credible and granted
Ms. Mackey physical therapy treatments three times a week for six weeks.

        The Board of Review reversed the Office of Judges’ Order on February 12, 2016. The
Board of Review determined that the Office of Judges erred in its reasoning and conclusions. On
the date of injury Ms. Mackey indicated that she injured her neck and shoulder. The medical
provider diagnosed a neck sprain and the claims administrator held the claim compensable for
neck sprain. In his independent medical evaluation, Dr. Grady determined that Ms. Mackey had
reached maximum medical improvement and suffered no impairment from the compensable
injury. He did not recommend additional treatment. Dr. Grady again stated that opinion in a letter
written after Ms. Mackey saw him and complained about the cessation of physical therapy
treatments. Ms. Mackey had met or exceeded the official guidelines of recommended treatment
for a neck sprain. Ms. Mackey had only ever been diagnosed with a neck sprain, and she reached
maximum medical improvement for that injury. The Board of Review found that she failed to
prove she was entitled to additional physical therapy and concluded that additional treatment was
not medically necessary or reasonably required to treat the compensable injury.

       We agree with the reasoning and conclusions of the Board of Review. Ms. Mackey was
diagnosed with a neck sprain and received conservative treatment for it over the course of fifteen
weeks. Dr. Grady determined that she reached maximum medical improvement and that her
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injury was completely resolved. Ms. Mackey failed to meet her burden of proof showing she was
entitled to additional treatments beyond what she had already received for the compensable
injury.

        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 3, 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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