                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
HELEN L. LILLY,                                                                    June 8, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 16-0706 (BOR Appeal No. 2051063)
                   (Claim No. 2015001744)


LITTLE GENERAL STORE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Helen L. Lilly, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Little General Store, Inc., by David A.
Holtzapfel, its attorney, filed a timely response.

        The issue on appeal is whether a neck sprain is a compensable condition of the claim and
if a referral to Andrew Thymius, D.O., is medically related and reasonably required treatment.
On February 20, 2015, the claims administrator denied a request to add a neck sprain as a
compensable condition of the claim. By separate decision on the same day the claims
administrator denied a request for a referral to Dr. Thymius. On January 26, 2016, the Office of
Judges affirmed both of the claims administrator’s decisions. The Board of Review affirmed the
Order on June 27, 2016. 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. Lilly, an employee for Little General Store, Inc., was climbing a ladder to change a
billboard at the store on July 11, 2014, when she fell. Ms. Lilly injured her back, head, elbow,
and ankle when she fell. Ms. Lilly sought medical attention at MedExpress the day of the injury.
She was diagnosed with right low back, right elbow, right wrist, and right ankle sprain. X-rays of
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the ankle, wrist, and elbow were unremarkable. There was no record indicating she injured her
neck.

        On July 15, 2014, the claims administrator approved the claim for lumbar spine, wrist,
elbow, and ankle sprains. Ms. Lilly had several follow-ups after the accident. She reported to
MedExpress on July 15, 2014; July 18, 2014; July 21, 2015; and July 30, 2014; and did not
report any neck symptoms to the provider. From July 30, 2014, until October 14, 2014, there
was no evidence that Ms. Lilly sought any treatment for her July 11, 2014, accident.

        On October 14, 2014, Ms. Lilly was seen at MedExpress. The diagnosis form included a
neck strain, which was the first documented evidence of any neck injury. Ms. Lilly only provided
three of the five pages of the report. An October 28, 2014, MRI of the neck revealed a bulging
disc at C4-5 with mild central canal stenosis, a central and paracentral disc protrusion at C5-6
with mild canal stenosis and bilateral foramina stenosis, and a right paracentral disc protrusion at
C5-7 with right neural foramina stenosis. Ms. Lilly was seen at MedExpress on November 16,
2014, and was diagnosed with a neck sprain, shoulder sprain, back strain, and unspecified
neuralgia neuritis/radiculitis. She was referred to a neurologist and placed on modified work
duty.

        Ms. Lilly was seen by John H. Schmidt III, M.D., on December 8, 2014. Ms. Lilly stated
that she suffered from eye twitching, neck pain, right diffuse arm pain, numbness into the right
hand, low back pain, and posterior leg pain. She indicated that physical therapy did not help and
that medications were of little effect. Dr. Schmidt noted that Ms. Lilly suffered from herniated
discs in her neck and would benefit from injections and a referral to a pain clinic. Dr. Schmidt
submitted a request for Ms. Lilly to see Dr. Thymius on December 10, 2014. The request neither
stated the reason for the referral nor a diagnosis.

       James Dauphin, M.D., completed a physician’s review report on December 17, 2014. He
opined that the alleged neck sprain should not be considered a compensable component of the
claim because Ms. Lilly did not mention the pain until months after the injury. He further opined
that any pain and treatment required in her neck was due to degenerative changes as opposed to
an acute injury. By separate decisions on February 20, 2015, the claims administrator found that
a neck sprain was not a compensable diagnosis in the claim and concluded that a referral to Dr.
Thymius was not necessary.

        On April 30, 2015, Ms. Lilly was deposed regarding her injury. She testified about her
fall and indicated that she hurt her neck during the accident. She stated that she did not have any
neck problems prior to the injury. After the injury her neck felt stiff, but she concluded that she
probably slept on it wrong. After some time, she realized that it was related to the injury and
reported it to her physician. In an undated handwritten statement Amy Cecil, Ms. Lilly’s
daughter and co-worker, stated that Ms. Lilly fell from the ladder and subsequently complained
of pain in her back, arm, hand, ankle, and head. She noted that MedExpress did not examine her
back, neck, or head.


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        The Office of Judges determined that Ms. Lilly did not sprain her neck in the course of
and as a result of her employment. The Office of Judges noted that she did not mention neck pain
directly after her injury or in the multiple follow-ups in July of 2014. The Office of Judges found
that she did not receive any treatment from July of 2014 until October of 2014. The Office of
Judges noted the first time Ms. Lily began complaining of neck pain was at a MedExpress visit
that occurred on October 14, 2014. This was a significant time after the injury had occurred. The
Office of Judges found that the MRI of the cervical spine revealed significant findings such as
disc bulges and protrusions with significant stenosis. The Office of Judges concluded that her
symptoms arose from the significant degenerative changes in the neck as opposed to an alleged
sprain. The Office of Judges also found that because there was not a compensable neck injury, a
referral to Dr. Thymius was not necessary.

         After review, we agree with the reasoning and conclusions of the Office of Judges and
Board of Review. Ms. Lilly failed to show that her neck symptoms were related to the accident.
She did not complain of neck pain directly after the injury or in any of her three follow-up
appointments. While it is apparent she began complaining of neck symptoms in October of 2014,
it is likely that these complaints are related to her significant cervical degenerative disc disease.
Further, the record is supported by the opinion of Dr. Dauphin. Because Ms. Lilly could not
show that she sustained a neck sprain attributable to the compensable injury, it was appropriate
for the Office of Judges and Board of Review to find that it was not a compensable condition of
the claim. Ms. Lilly argued that her neck injury required her to see Dr. Thymius, a pain clinic
physician. Because her neck is not a compensable component of the claim, it was appropriate for
treatment to be denied.

        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: June 8, 2017

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

DISSENTING:
Justice Menis E. Ketchum

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