                             STATE OF WEST VIRGINIA 


                          SUPREME COURT OF APPEALS 


NORENA F. BUCKLAND,                                                                  FILED
Claimant Below, Petitioner                                                           May 7, 2018
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs.)   No. 17-1015 (BOR Appeal No. 2051973)
                   (Claim No. 2009087828)

WAL-MART, 

Employer Below, Respondent 


                             MEMORANDUM DECISION
       Petitioner Norena F. Buckland, by Patrick K. Maroney, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Wal-Mart, by Karin L.
Weingart, its attorney, filed a timely response.

       The issue on appeal is whether a referral to pain management is medically necessary and
reasonably required treatment for Ms. Buckland’s compensable injury. The claims administrator
denied the referral on May 13, 2015. The Office of Judges affirmed the decision in its May 1,
2017, Order. The Order was affirmed by the Board of Review on October 25, 2017. 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. Buckland, a door greeter, was injured in the course of her employment on April 8,
2009, when she slipped in an icy parking lot and hit her elbows, back, and head. The employee’s
and physician’s report of injury indicates the parking lot where Ms. Buckalnd fell was covered in
ice. She hit her back and elbow and struck her head on the step of her truck when she slipped and
fell. Colin Rose, M.D., diagnosed disc herniation, and Ms. Buckland was taken off of work. Ms.
Buckland underwent C4-5 intracervical discectomy and arthrodesis for her C4-5 disc herniation
on August 28, 2009. On October 15, 2010, the surgery was authorized, temporary total disability
benefits were granted, and cervical disc displacement was added to the claim.
                                                1

       In a February 23, 2011, independent medical evaluation, A.E. Landis, M.D., diagnosed
contusion/sprain type injury which caused a C4-5 herniation for which Ms. Buckland had an
unsuccessful surgery. The lumbar spine symptoms were found to be the result of the fall which
aggravated preexisting degenerative changes in the lumbar spine. The cervical symptoms were
opined to be directly related to the compensable injury and the surgery that followed. Dr. Landis
found that Ms. Buckland’s congenital C5-6 fusion would have no effect on her cervical
symptoms. He determined that she had not yet reached maximum medical improvement and
would need a neurosurgical evaluation as well as chronic pain management.

       Jerry Scott, M.D., performed an independent medical evaluation on August 27, 2013, in
which he diagnosed exacerbation of preexisting cervical and lumbar degenerative disc disease as
well as lumbar sprain. He opined that Ms. Buckland’s current symptoms are not a result of the
compensable injury. Dr. Scott found that she had been diagnosed with fibromyalgia and
degenerative disc disease. He determined that Ms. Buckland had reached maximum medical
improvement.

        In a December 18, 2015, independent medical evaluation, Sushil Sethi, M.D., diagnosed
cervical disc herniation and lumbar sprain. He found that the herniated disc had been well
stabilized. Dr. Sethi noted that Ms. Buckland had aches and pains that were the result of her
congenital anomaly at C5-6, fibromyalgia, and degenerative disease at multiple levels. He found
that the work related injury had resolved. Dr. Sethi opined that treatment after Dr. Scott's August
27, 2013, evaluation is not medically related or necessary for the compensable injury. He
specified that office visits, medication, and therapy have been to treat the noncompensable
fibromyalgia and degenerative disease.

        The claims administrator denied a referral to pain management on May 13, 2015, The
Office of Judges affirmed the decision in its May 1, 2017, Order. It found that a preponderance
of the evidence shows that Ms. Buckland’s symptoms are not related to the compensable injury.
The Office of Judges concluded that she has degenerative disease at multiple levels in various
parts of her body and it is more likely the cause of her current symptoms. This was supported by
the reports of Drs. Sethi and Scott who found that Ms. Buckland’s current symptoms and
treatment are the result of noncompensable fibromyalgia. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on October
25, 2017.

       After review, we agree with the reasoning and conclusion of the Office of Judges as
affirmed by the Board of Review. Ms. Buckland’s compensable injury occurred nine years ago.
The evidence indicates that her current symptoms are the result of noncompensable conditions.

        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.

                                                2

                                         Affirmed.
ISSUED: May 7, 2018

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

DISSENTING:
Justice Menis E. Ketchum




                                    3

