                       STATE OF WEST VIRGINIA

                     SUPREME COURT OF APPEALS
                                                        FILED
                                                        May 5, 2017

                                                  RORY L. PERRY II, CLERK

MARY ANN ROBERTS,                               SUPREME COURT OF APPEALS

Claimant Below, Petitioner                          OF WEST VIRGINIA




vs.)   No. 16-0545 (BOR Appeal No. 2050954)
                   (Claim No. 2003001392)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

AFFORDABLE ELDERLY CARE PROVIDERS, INC.,
Employer Below, Respondent

AND

MARY ANN ROBERTS,
Employer Below, Petitioner

vs.)   No. 16-0551 (BOR Appeal No. 2050394)
                   (Claim No. 2010130461)

MARY ROBERTS,
Claimant Below, Respondent




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                                  MEMORANDUM DECISION
        These consolidated appeals arise out of two Orders by the Workers’ Compensation Board
of Review concerning the entitlement of Mary Roberts to medical benefits, a reopening of her
claim for additional permanent partial disability and the addition of additional conditions to her
claim.1

        In Case Number 16-0545, Petitioner Mary Ann Roberts, by M. Jane Glauser, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
West Virginia Office of the Insurance Commissioner, by Noah A. Barnes, its attorney, filed a
timely response. The issue on appeal is whether Ms. Roberts is entitled to the additional medical
treatment as well as the addition of post-laminectomy/failed back syndrome to the claim. On
December 5, 2014, the claims administrator denied her petition to reopen the claim for medical
treatment and denied a request to add post-laminectomy/failed back syndrome to the claim. The
Office of Judges affirmed the decision in its November 2, 2015, Order. The Board of Review
affirmed the Order on May 11, 2016.

       In Case Number 16-0551, Petitioner Mary Ann Roberts, by Lucinda Fluharty, its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Mary Roberts, by M. Jane Glauser, her attorney, filed a timely response. The issue on appeal is
whether Ms. Roberts is entitled to additional impairment and medical benefits. On October 28,
2013, the claims administrator decision denied reopening of the claim for additional impairment.
On October 28, 2013, it denied a lumbar MRI. Finally, on October 4, 2013, the claims
administrator denied a lumbar MRI, chiropractic treatment, and a referral to Samy Sakla, M.D.
The Office of Judges affirmed the claims administrator’s decisions in its March 27, 2015, Order.
The Board of Review affirmed, in part, and reversed, in part, the Order on May 11, 2016. The
Board of Review denied the reopening for additional impairment but authorized a lumbar MRI,
chiropractic visits, and the referral to Dr. Sakla. 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. Roberts, a home health worker, was injured in the course of her employment on
March 1, 2002. The claim was held compensable for lumbar sprain/strain and sciatica. On June
4, 2004, the claims administrator authorized a hemilaminectomy, microdiscectomy, and
foraminotomy at L5-S1. The claims administrator approved a second surgery, a

1
  On July 7, 2016, Ms. Roberts requested by written motion that this Court consolidate appeal numbers 16-0545 and
16-0551. Upon consideration, the Court granted Ms. Roberts’s motion and consolidated the two appeals.
                                                         2
hemilaminectomy at L4-5, on August 4, 2005. She was also treated thereafter with lumbar spine
injections. Sushil Sethi, M.D., performed an independent medical evaluation on October 14,
2005, in which he noted that Ms. Roberts had undergone lumbar surgeries. She currently
complained of low back pain. Dr. Sethi opined that her current pain was due to her congenital
condition of retrolisthesis. He found she had reached maximum medical improvement and
recommended 13% impairment. On August 8, 2008, Dr. Sakla indicated in a treatment note that
Ms. Roberts was seen for follow-up for left side low back pain. She reported that her pain had
improved at least 95%. Dr. Sakla therefore recommended deferring further injections unless
needed.

         Ms. Roberts suffered a second work-related lower back injury on November 17, 2009,
while helping a client into the shower. Dr. Sakla noted on December 28, 2009, that Ms. Roberts
presented on examination with pain for the last four weeks. She reported that she had significant
relief following her first injury and was feeling 90% better from sacroiliac injections. This relief
lasted until the November 17, 2009, recurrence. Ms. Roberts submitted a report of injury stating
that she was injured while helping a client into the shower. The diagnosis was listed by Gerald
Booth, D.C., as lumbosacral sprain/strain and it was noted that the injury aggravated a pre­
existing lumbar sprain/strain. An MRI taken April 27, 2010, showed minimal disc bulging from
L1-L4. Three was a mild to moderate bulge at L4-5 with a radial tear along with bilateral facet
hypertrophy and marked impingement. There was moderate diffuse disc bulging at L5-S1 with
bilateral facet hypertrophy and moderate to severe impingement.

       On March 4, 2011, Victoria Langa, M.D., noted in a report that Ms. Roberts stated her
back pain and left lower extremity numbness/tingling had worsened since the November 17,
2009, injury. The diagnoses were listed as chronic lumbar post-laminectomy/failed back
syndrome, underlying age-related diffuse lumbar degenerative disc disease/degenerative joint
disease, chronically symptomatic left sacroiliac joint, and diabetic peripheral neuropathy
involving both feet. Dr. Langa opined that the current complaints ultimately related to the March
1, 2002, injury. It was her opinion that Ms. Roberts’s symptoms were aggravated by the
November 17, 2009, injury.

       In a May 11, 2011, letter, Dr. Booth requested a consultation with Dr. Sakla. On July 11,
2011, he stated that Dr. Sakla recommended left sacroiliac injections. Dr. Booth agreed with the
treatment plan. Dr. Sakla’s June 8, 2011, treatment notes indicate Ms. Roberts was experiencing
back pain for the prior nineteen months due to a work injury sustained on November 17, 2009.
He diagnosed her with lumbar sprain and sprain of the sacroiliac region. He recommended that
she receive sacroiliac injections to help with the pain and requested that the claims administrator
authorize the injections.

        A July 25, 2011, Office of Judges’ Order affirmed a denial of a request for chiropractic
treatment in the November 17, 2009, claim. It found that Ms. Roberts’s pain from the 2002
injury had become much less severe approximately a year before the 2009 injury occurred. It
held that she sustained a compensable injury on November 17, 2009. The claims administrator
held the claim compensable for lumbar sprain and sacrum sprain.

                                                 3
        In an August 10, 2011, chiropractic statement, Dr. Booth stated that Ms. Roberts needs
chiropractic care. He listed both the 2002 and 2009 injuries on the form but stated that it was
reasonable and necessary because she suffered a sprain/strain on November 17, 2009, that was
determined to be a new injury. In a diagnosis update it appears that he requested that lumbar
sprain/strain and sacroiliac sprain/strain be added to both claims.

        In an independent medical evaluation on September 26, 2011, Dr. Sethi found that Ms.
Roberts’s sprain was self-limiting and should have resolved in six to twelve weeks. She had
received sufficient treatment. He opined that her sacroiliac joint symptomatology appeared to be
chronic as she was already receiving treatment in 2007. She had reached maximum medical
improvement for the November 17, 2009, injury and he assessed 5% impairment. Bruce
Guberman, M.D., performed an independent medical evaluation on January 5, 2012. Dr.
Guberman diagnosed post-traumatic acute and chronic lumbosacral strain and L5-S1 disc disease
with left sided radiculopathy. He noted that Ms. Roberts originally injured her lower back on
March 1, 2003, and underwent two surgeries. Following her surgeries she did well and had no
significant limitations. Following her November 17, 2009, injury she has had increased pain and
decreased range of motion. Dr. Guberman found that Ms. Roberts had reached maximum
medical improvement. He assessed 22% lumbar spine impairment. Ms. Roberts had previously
received a 13% permanent partial disability award award which was subtracted from the range of
motion impairment for a total of 9% permanent partial disability for the November 17, 2009,
injury. He placed her in Lumbar Category II of West Virginia Code of State Rules § 85-20-C
(2006) and adjusted the impairment to 8%.

        On January 9, 2012, the Office of Judges denied a request for sacroiliac injections in the
2002 claim because it found that Dr. Sakla opined that the injections were necessitated by the
2009 injury. In a physician review, Rebecca Thaxton, M.D., recommended denying the request
for authorization of SI joint injections. She found that the treatment was for unrelated, pre­
existing conditions. The Office of Judges reversed a claims administrator’s decision and
approved authorization for SI joint injections on August 29, 2012, for the November 17, 2009,
injury.

       In an October 2, 2012, independent medical evaluation, Dr. Langa noted that Ms. Roberts
had reached maximum medical improvement for her November 17, 2009,
lumbar/sacral/sacroiliac sprains. No additional impairment was deemed necessary. Dr. Langa
disagreed with Dr. Guberman’s assessment, particularly his methodology. She also disagreed
with his range of motion impairment calculations as Ms. Roberts showed significantly better
measurements on examination by Dr. Langa. Finally, Dr. Langa disagreed that there was any
evidence of S1 motor radiculopathy.

        In a February 1, 2013, letter, Dr. Booth noted that Ms. Roberts would greatly benefit
from a series of L5-SI injections. He opined that the treatment was reasonable and necessary for
her work injury. He stated that he agreed with Dr. Sakla, who originally recommended the
injections. Dr. Booth asserted in a medical statement that Ms. Roberts had experienced ongoing
problems with her lower back since November 17, 2009, and has continued to be treated by Dr.
Sakla since that time. He requested a lumbar MRI. In a July 19, 2013, letter, Dr. Booth again
                                                4
noted that Ms. Roberts has continued to be treated for lower back pain since 2009. He noted that
she continued to be treated by Dr. Sakla and that she needed an evaluation with him for possible
further injections. He also requested chiropractic visits. On August 20, 2013, he opined that the
current symptoms are likely the result of a combination of both the 2002 and 2009 injuries.

       In an August 5, 2013, physician review, James Dauphin, M.D., was asked whether a new
lumbar MRI and six additional chiropractic visits should be authorized. Dr. Dauphin found no
evidence that Ms. Roberts was worse due to the 2009 sprain. He determined that the symptom
worsening she was experiencing was most likely unrelated to the sprain. He recommended that
the request for an MRI and chiropractic visits be denied. On August 12, 2013, the claims
administrator denied authorization of a lumbar MRI, chiropractic treatment, and a referral to Dr.
Sakla in the 2009 claim. The claims administrator again denied a lumbar MRI, chiropractic
treatment, and a referral to Dr. Sakla on October 4, 2013. On October 28, 2013, it denied a
lumbar MRI and, in a separate decision, it also denied reopening the 2009 claim for additional
impairment.

        On January 14, 2014, the West Virginia Supreme Court of Appeals affirmed a May 25,
2012, Board of Review decision in the March 1, 2002, claim denying a request for sacroiliac
injections. We found that the injections were necessitated by the November 17, 2009, injury.

       Treatment notes from Ohio Valley Medical Center Emergency Trauma Unit dated March
12, 2014, indicate Ms. Roberts was in a motor vehicle accident. She struck the back of her head
and had pain in her neck, head, and lower back. She was diagnosed with acute cervical sprain,
head contusion, and thoracolumbar sprain and sent home with medication. Physical therapy
treatment notes indicate Ms. Roberts was evaluated for lumbago and cervicalgia due to a motor
vehicle accident. She underwent therapy from April 9, 2014, through July 28, 2014.

       On June 2, 2014, the Office of Judges affirmed claims administrator decisions dated
August 29, 2013; October 31, 2013; and November 12, 2013, which denied treatment and
reopening of the claim. In that case, the employer argued that Ms. Roberts’s request should be
denied because no new evidence was presented in support.

        In a June 2, 2014, independent medical evaluation, Dr. Langa noted Ms. Roberts was
seen in reference to the November 17, 2009, work injury. Dr. Langa noted that she is in
agreement with the denials for additional treatment and diagnostic testing. Ms. Roberts has a
long standing history of chronic lumbar post laminectomy/failed back syndrome following a
2002 work injury and subsequent surgeries. She also has age related lumbar degenerative
disc/joint disease. Ms. Roberts reported that her symptomology had been slowly progressing
over time. Dr. Langa opined that the progression was not due to the lumbosacral sprain sustained
on November 17, 2009. Further, Dr. Langa stated that there is no indication for the 2009 claim to
be reopened for additional permanent partial disability. Ms. Roberts suffered a motor vehicle
accident in 2014 after which she had increased lower back pain and she reported that her lower
back remained aggravated from the accident.


                                               5
        In a September 8, 2014, evaluation report, Dr. Langa opined that Ms. Roberts has chronic
lumbar post laminectomy/failed back syndrome following two surgeries performed due to the
March 1, 2002, injury. She has been continuously symptomatic since that injury with chronic
complaints of left-sided lower back/buttock discomfort with intermittent radiation into the left
leg. Dr. Langa opined that her current complaints ultimately related to the 2002 injury and not
the 2009 injury. Dr. Langa noted that Ms. Roberts was treated from the time of the 2002 injury
up to and beyond the 2009 injury. Dr. Langa stated that she merely suffered sprains/strains on
November 17, 2009, and any treatment for of chronic lumbar post laminectomy/failed back
syndrome is ultimately for the March 1, 2002, injury. She opined that chronic pain management
would be appropriate but no further treatment beyond that was required.

       On November 10, 2014, the West Virginia Supreme Court of Appeals denied a further
permanent partial disability award in the November 17, 2009, claim. On November 4, 2015, the
Court denied chiropractic visits, a lumbar MRI, referral to Dr. Sakla, a consultation with Mark
Grubb, M.D., and reopening of the 2002 claim for additional permanent partial disability because
they were determined to be necessitated by the November 17, 2009, injury

        On March 27, 2015, the Office of Judges affirmed the claims administrator’s October 4,
2013, and October 28, 2013, decisions denying a lumbar MRI, chiropractic treatment, referral to
Dr. Sakla, and reopening for additional impairment in the November 17, 2009, claim. The Office
of Judges noted that prior Office of Judges’ Orders have found that a compensable injury
occurred on November 17, 2009, which caused additional low back problems for which Ms.
Roberts required treatment. The compensable conditions in the 2009 claim are lumbar strain,
sacroiliac strain, and sacrum strain. The prior treatment authorized by the Office of Judges was
determined to be due to the new injury of November 17, 2009, although the injury was
superimposed upon chronic low back problems that Ms. Roberts developed as a result of the
March 1, 2002, injury. The Office of Judges concluded in the instant case that the medical
records now demonstrate that her current problems are not a result of the November 17, 2009,
compensable injury. Dr. Langa’s September 8, 2014, findings, that the sprain/strains that were
found compensable in the subject claim are no longer causing Ms. Roberts’s symptoms, were
found to be credible. The request to reopen the claim on a permanent partial disability basis was
also denied. The only evidence attached in support of the request was Dr. Booth’s treatment
records, which made no impairment recommendation. The Office of Judges found no evidence in
the record that demonstrates Ms. Roberts has suffered a progression of her disability above that
already granted.

        On May 11, 2016, the Board of Review affirmed the March 27, 2015, Office of Judges’
Order insofar as it denied the request to reopen the claim for additional permanent partial
disability. The Board of Review reversed the Office of Judges insofar as it denied a lumbar MRI,
chiropractic treatment, and referral to Dr. Sakla and authorized the requests. The Board of
Review found that Ms. Roberts suffered a compensable injury on March 1, 2002, after which two
lumbar surgeries were performed. On November 17, 2009, she suffered another lower back
injury which was eventually held compensable. The Board of Review took note of a July 26,
2011, Office of Judges’ Order which added sacroiliac strain as a compensable condition in the
                                               6
2009 injury and affirmed a denial of a request for chiropractic treatment. On August 29, 2012,
the Office of Judges authorized sacroiliac joint injections. The Office of Judges held that though
Ms. Roberts had significant prior back problems, the November 17, 2009, injury caused the need
for additional treatment and her symptomology greatly increased after the 2009 injury. The
Board of Review also found that on July 15, 2013, Dr. Booth reported that Ms. Roberts has had
ongoing problems with the lower back since the 2009 injury and needs a new MRI of the lumbar
spine. On July 19, 2013, Dr. Booth requested six chiropractic visits and referral to Dr. Sakla for
possible further injections. After reviewing the evidence, the Board of Review concluded that the
lumbar MRI, chiropractic treatment, and referral to Dr. Sakla are medically necessary and
reasonably required treatment for the November 17, 2009, injury.

        After review, we agree with the reasoning and conclusions of the Board of Review. The
medical evidence indicates that Ms. Roberts’s current symptoms are a result of the November 17,
2009, compensable injury. Per Dr. Sakla’s September 8, 2008, treatment note, Ms. Roberts’s
pain had improved at least 95% following her March 1, 2002, injury. Dr. Sakla therefore
recommended deferring further injections unless needed. After the November 17, 2009, injury,
she again suffered back pain and both Dr. Sakla and Dr. Booth recommended lumbar spine
injections to treat the injury. Additionally, this Court has previously found in Case Numbers 12­
0784 and 15-0058 that a request for lumbar spine injections, chiropractic visits, a lumbar MRI,
and a referral to Dr. Sakla were necessitated by the November 17, 2009, injury, not the March 1,
2002, injury. The Board of Review was also correct to affirm the Office of Judges’ denial of a
reopening of the claim for additional permanent partial disability. The only evidence attached in
support of the request was Dr. Booth’s treatment records, which made no impairment
recommendation.2

        On November 2, 2015, the Office of Judges affirmed the claims administrator’s
December 5, 2014, decision denying a petition to reopen the claim for medical treatment and
denied a request to add post-laminectomy failed back syndrome to the claim. It found that Ms.
Roberts sustained a serious work-related back injury on March 1, 2002, that necessitated two
lumbar surgeries. On November 17, 2009, she suffered another compensable lower back injury.
At that time, she was not having any problems from her 2002 injury and had not had treatment
for the lower back for some time prior to the 2009 injury. Following the 2009 injury, Ms.
Roberts required treatment for a fairly long time. The Office of Judges found that Dr. Langa
concluded that her current problems were chronic pain as a result of post-laminectomy/failed
back syndrome and degenerative changes, as well as an aggravation of her pain due to a 2014
motor vehicle accident. The Office of Judges determined that Dr. Langa’s opinion was correct.
Ms. Roberts’s current problems were found to be primarily due to her 2002 compensable injury
and subsequent surgeries. It was found that she does now suffer from post-laminectomy/failed
back syndrome. However, the Office of Judges found that, as noted in a prior June 30, 2015,
Order, the petition to reopen the claim to add post-laminectomy/failed back syndrome to the
claim is time barred, as is the request for additional treatment.


2
  On July 7, 2016, Ms. Roberts filed a motion to apply collateral estoppel in her November 17, 2009, claim. That
motion has been rendered moot by this Court’s decision.
                                                          7
        The Office of Judges stated that the claim was closed on a medical treatment basis. The
record shows that Ms. Roberts was last treated on September 2, 2008, by Dr. Sakla for the 2002
injury. Therefore, in accordance with West Virginia Code §23-4-16(a)(4) (2005), Ms. Roberts
could have been authorized to receive treatment within five years of that date. On December 28,
2009, Dr. Sakla saw her for recurrent back pain, but he found it was due to the 2009 injury. The
Office of Judges concluded that the request for additional treatment was not timely filed since it
was not made within five years of the last significant treatment for the subject claim. In regard to
the request to add post-laminectomy/failed back syndrome to the claim, the Office of Judges
found that the request must be made within five years of the initial permanent partial disability
award. In the 2002 claim, Ms. Roberts received a 13% permanent partial disability award in
2005. She therefore had until 2011 to request the addition of post-laminectomy/failed back
syndrome to the claim. The Office of Judges concluded that the request in this case is untimely
and was properly denied. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order on May 11, 2016.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence shows that her requests for additional treatment
and the addition of post-laminectomy/failed back syndrome to the claim were properly denied as
they were time barred.

        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: May 5, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:
Justice Margaret L. Workman




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