          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                  January 2015 Term                     FILED

                                                                   February 5, 2015

                                                                     released at 3:00 p.m.

                                                                   RORY L. PERRY II, CLERK

                                                                 SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA


                                      No. 12-1127



                                 JENNIFER MOORE,

                               Claimant Below, Petitioner


                                           v.


                              K-MART CORPORATION,

                              Employer Below, Respondent




                       Appeal from the Workers’ Compensation

                                  Board of Review

                                    No. 2046853


                             REVERSED AND REMANDED



                              Submitted: January 14, 2015
                                Filed: February 5, 2015



George Zivkovich, Esq.                                Michael A. Kawash, Esq.
Parkersburg, West Virginia                            Robinson & McElwee PLLC
Counsel for Petitioner                                Charleston, West Virginia
                                                      Counsel for Respondent



CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.

                              SYLLABUS BY THE COURT



              1.     “Interpreting a statute or an administrative rule or regulation

presents a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian

Power Co. v. State Tax Dep’t of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).



              2.     “One of the basic purposes of workmen’s compensation legislation

is to impose upon industry the cost of medical expenses incurred in the treatment and

rehabilitation of workers who have suffered injuries in the course of and as a result of

their employment[.]” Syl. Pt. 2, in part, Ney v. State Workmen’s Comp. Com’r, 171

W.Va. 13, 297 S.E.2d 212 (1982).



              3.     “Any rules or regulations drafted by an agency must faithfully

reflect the intention of the Legislature, as expressed in the controlling legislation. Where

a statute contains clear and unambiguous language, an agency’s rules or regulations must

give that language the same clear and unambiguous force and effect that the language

commands in the statute.” Syl. Pt. 4, Maikotter v. Univ. of W.Va. Bd. of Trs., 206 W.Va.

691, 527 S.E.2d 802 (1999).



              4.     West Virginia Code of State Rules § 85-20-62.2 (2006), which

provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or

self-insured employer, whichever is applicable, will not reimburse for IV chelation

therapy performed in office[,]” unreasonably denies reimbursement when such treatment

                                             i
is medically necessary, in contravention of the Workers’ Compensation Act, West

Virginia Code § 23-4-3 (2010), and it is therefore invalid.




                                             ii

Workman, Chief Justice:


             In this workers’ compensation appeal, the claimant/petitioner, Jennifer

Moore (“Petitioner”), challenges the validity of a regulation insofar as it denies

reimbursement for medically necessary intravenous chelation therapy when the therapy is

performed in a physician’s office. Having studied the record and reviewed the arguments

of the parties in consideration of applicable legal authority, we conclude the portion of

the regulation challenged is unreasonable and inconsistent with the Workers’

Compensation Act, specifically West Virginia Code § 23-4-3 (2010), and hereby

invalidate it. We reverse the order of the Workers’ Compensation Board of Review

(“BOR”) and remand this matter for entry of an order directing that Petitioner’s

reasonable expenses for medically necessary chelation therapy be reimbursed.



                   I. FACTUAL AND PROCEDURAL HISTORY

             Petitioner worked for the K-Mart Corporation (“Respondent”) for more

than thirty years. During the course of her employment, Petitioner used belt sanders and

grinders to refurbish furniture. She worked in a small room with poor ventilation and was

exposed to furniture dust and metal dust. Petitioner developed symptoms of tingling and

numbness in her feet. 1 Following medical testing, her treating physician, Jonathan

Murphy, M.D., an internal medicine specialist familiar with the principles of toxicology,

      1
        Petitioner testified at deposition that she began having problems with her feet in
June of 2006. Her symptoms included burning and tingling that felt like crushed ice
coming out of the bottom of her feet. Over time, Petitioner’s symptoms grew worse.

                                            1

diagnosed Petitioner with peripheral neuropathy due to toxic exposure to heavy metals at

the workplace. 2 Petitioner filed a claim for workers’ compensation and following

litigation, the claim was ruled compensable.3



              In 2008, Dr. Murphy began treating Petitioner with intravenous chelation

therapy and her symptoms have improved. In layman’s terms, the process of chelation

therapy is simple: it is a chemical process in which a synthetic solution is injected into the

bloodstream to help remove heavy metals4 and/or minerals from the body.5 Dr. Murphy

has extensive experience performing this therapy in his office; he states there are no


       2
       Petitioner’s urine toxicology revealed elevated levels of heavy metals including
aluminum, lead, and nickel.
       3
        Petitioner protested the claim administrator’s order of July 3, 2008, which denied
compensability of the claim. In support of her protest, Petitioner submitted various
medical records including diagnostic test reports from Dr. Murphy’s office. She also
submitted her deposition testimony and the deposition testimony of Dr. Murphy. An
Administrative Law Judge with the Workers’ Compensation Office of Judges reviewed
this evidence and found the claim compensable by decision dated April 29, 2010.
Respondent appealed, and by order dated December 15, 2010, the BOR affirmed the
decision of the Administrative Law Judge, with modifications.
       4
       “The so-called heavy metals [include] . . . lead, cadmium, zinc, mercury and iron
and, while aluminum is not a heavy metal, aluminum may be considered as such for the
purposes hereinafter mentioned as it tends to some extent to be chelated by the processes
concerned.” U.S. v. Evers, 453 F.Supp. 1141, 1143 n.4 (1978).
       5
        During chelation therapy, a patient receives intravenous injections of the
chelating drug, usually disodium ethylenediamine tetraacetic acid (“EDTA”). Evers, 453
F.Supp. at 1143. The chelating drug binds to the harmful metals and they are passed out
of the body through the kidneys. EDTA intravenous treatment is often recommended for
lead poisoning and other diseases requiring removal of heavy metals from the body.
Rogers v. State Bd. of Med. Exam’rs, 371 So.2d 1037, 1039 (Fla. 1979).

                                              2

chelation programs in hospitals in West Virginia that treat chronic heavy metal toxicity.

The record is undisputed that this treatment is medically necessary to treat Petitioner’s

compensable condition. 6 In this appeal, Petitioner is seeking reimbursement for these

medical expenses.



               Petitioner appeals the August 29, 2012, order of the BOR, which denied her

request for reimbursement for medical expenses for intravenous chelation therapy from

May 1, 2008, through October 15, 2010. 7 The BOR denied reimbursement for these

medical expenses pursuant to West Virginia Code of State Rules § 85-20-62.2 (2006)

which provides, in part, that: “The Commission, Insurance Commissioner, private carrier

or self-insured employer, whichever is applicable, will not reimburse for IV chelation

therapy performed in office.”8




       6
       The danger associated with the harmful metals remaining in the blood is that the
blood vessels may become clogged, disallowing free passage of the blood through the
blood vessels causing stroke, senility because of inadequate blood supply to the brain,
gangrene resulting from failure of sufficient blood in the limbs, and various degrees of
numbness, dizziness and pain associated with poor circulation. Evers, 453 F.Supp. at
1144.
       7
        At his deposition in September of 2009, Dr. Murphy testified that Petitioner had
undergone approximately thirty treatments and her peripheral neuropathy symptoms
improved. Dr. Murphy recommended that in the future, Petitioner have four intravenous
chelation therapy treatments per year.
       8
           The full text of West Virginia Code of State Rules § 85-20-62.2, reads as
follows:

(continued . . .)
                                            3

             In so ruling, the BOR reversed a decision of an Administrative Law Judge

(“ALJ”) with the Workers’ Compensation Office of Judges (“OOJs”). The ALJ had

reversed the claim administrator’s order denying reimbursement for chelation therapy,

concluding that reimbursement was appropriate because “[t]he Claim Administrator must

provide medically related and reasonably required medical treatment, health care or

healthcare goods and services under the W.Va. Code §23-4-3 and 85 CSR 20.”



                            II. STANDARD OF REVIEW

             Petitioner contends the BOR erred in reversing the OOJs’ order granting

reimbursement for medically necessary intravenous chelation therapy. Our review of

workers’ compensation appeals is guided by the criteria set forth in West Virginia Code §

23-5-15 (2010):

                   (b) In reviewing a decision of the board of review, the
             Supreme Court of Appeals shall consider the record provided

                     All chelation therapy (oral and IV) requires prior
             authorization and consultation with a Board Certified Medical
             Toxicologist, an occupational medicine specialist, or general
             internist familiar with principals of toxicology, prior to
             initiation of the therapy. In the rare incident, in which acute
             encephalopathy occurs as the result of heavy metal toxicity, a
             consultation with the Poison Control Center will serve as
             confirmation of the need for such chelation therapy. The
             Commission, Insurance Commissioner, private carrier or self-
             insured employer, whichever is applicable, will not reimburse
             for IV chelation therapy performed in office.

       The record reflects that Petitioner was unable to receive prior authorization for
chelation therapy, as required by the regulation, because the claim was held non­
compensable at the time she began this treatment. See footnote 3, supra.

                                           4

              by the board and give deference to the board’s findings,
              reasoning and conclusions, in accordance with subsections (c)
              and (d) of this section.

                     ....

                     (d) If the decision of the board effectively represents a
              reversal of a prior ruling of either the commission or the
              Office of Judges that was entered on the same issue in the
              same claim, the decision of the board may be reversed or
              modified by the Supreme Court of Appeals only if the
              decision is in clear violation of constitutional or statutory
              provisions, is clearly the result of erroneous conclusions of
              law, or is so clearly wrong based upon the evidentiary record
              that even when all inferences are resolved in favor of the
              board’s findings, reasoning and conclusions, there is
              insufficient support to sustain the decision. The court may not
              conduct a de novo re-weighing of the evidentiary record. If
              the court reverses or modifies a decision of the board
              pursuant to this subsection, it shall state with specificity the
              basis for the reversal or modification and the manner in which
              the decision of the board clearly violated constitutional or
              statutory provisions, resulted from erroneous conclusions of
              law, or was so clearly wrong based upon the evidentiary
              record that even when all inferences are resolved in favor of
              the board’s findings, reasoning and conclusions, there is
              insufficient support to sustain the decision.



              Resolution of this matter requires us to interpret a provision contained in

the West Virginia Code of State Rules and our review is therefore de novo. “Interpreting

a statute or an administrative rule or regulation presents a purely legal question subject to

de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W.Va., 195

W.Va. 573, 466 S.E.2d 424 (1995); Hale v. W.Va. Office of Ins. Com’r, 228 W.Va. 781,

784, 724 S.E.2d 752, 755 (2012). With these principles in mind, we consider the

arguments of the parties.
                                             5

                                      III. DISCUSSION


                The sole issue we address in this appeal is whether Petitioner is entitled to

receive reimbursement for medically necessary intravenous chelation therapy when the

therapy was performed in her physician’s office. Petitioner urges this Court to invalidate

the challenged portion of West Virginia Code of State Rules § 85-20-62.2 as arbitrary

and capricious. She maintains the BOR’s decision is tantamount to a denial of medical

treatment in contravention of West Virginia Code § 23-4-3, 9 which requires the claim


       9
           West Virginia Code § 23-4-3, provides, in part, that:

                        The commission, and effective upon termination of the
                commission, all private carriers and self-insured employers or
                their agents, shall disburse and pay for personal injuries to the
                employees who are entitled to the benefits under this chapter
                as follows:

                       (1) Sums for health care services, rehabilitation
               services, durable medical and other goods and other supplies
               and medically related items as may be reasonably required.
               The commission, and effective upon termination of the
               commission, all private carriers and self-insured employers or
               their agents, shall determine that which is reasonably required
               within the meaning of this section in accordance with the
               guidelines developed by the health care advisory panel
               pursuant to section three-b [§ 23-4-3b] of this article:
               Provided, That nothing in this section shall prevent the
               implementation of guidelines applicable to a particular type
               of treatment or service or to a particular type of injury before
               guidelines have been developed for other types of treatment
               or services or injuries: Provided, however, That any
               guidelines for utilization review which are developed in
               addition to the guidelines provided for in section three-b of
               this article may be used by the commission, and effective
               upon termination of the commission, all private carriers and
               self-insured employers or their agents, until superseded by
(continued . . .)
                                               6

administrator provide medically related and reasonably required medical treatment,

healthcare or healthcare goods and services. Respondent, conversely, argues the medical

treatment at issue should be denied consistent with the regulatory bounds of the workers’

compensation system.



              We begin by recognizing the Workers’ Compensation Act provides benefits

to workers who have “received personal injuries in the course of and resulting from their

covered employment[.]” W.Va. Code § 23-4-1 (2010). Under the Act, the term “personal

injury” includes occupational disease. W.Va. Code § 23-4-1(b). “One of the basic

purposes of workmen’s compensation legislation is to impose upon industry the cost of

medical expenses incurred in the treatment and rehabilitation of workers who have

suffered injuries in the course of and as a result of their employment[.]” Syl. Pt. 2, in part,

Ney v. State Workmen’s Comp. Com’r, 171 W.Va. 13, 297 S.E.2d 212 (1982).


              guidelines developed by the health care advisory panel
              pursuant to said section. Each health care provider who seeks
              to provide services or treatment which are not within any
              guideline shall submit to the commission, and effective upon
              termination of the commission, all private carriers, self-
              insured employers and other payors, specific justification for
              the need for the additional services in the particular case and
              the commission shall have the justification reviewed by a
              health care professional before authorizing the additional
              services. The commission, and effective upon termination of
              the commission, all private carriers, self-insured employers
              and other payors, may enter into preferred provider and
              managed care agreements which provides for fees and other
              payments which deviate from the schedule set forth in this
              subsection.

                                              7

              Pursuant to West Virginia Code § 23-4-3b (2010), the Workers’

Compensation Commission established guidelines for health care treatment reasonably

required for various types of injuries and occupational diseases. W.Va. Code § 23-4­

3b(1). See Syl. Pt. 10, Simpson v. W.Va. Office of the Ins. Comm’r, 223 W.Va. 495, 678

S.E.2d 1 (2009) (upholding constitutionality of statute whereby Legislature specifically

delegated its rule-making authority for medical management of workers’ compensation

claims and awards of disability).



              According to the agency regulation at issue, a claimant will be denied

reimbursement for intravenous chelation therapy performed in an office. W.Va. Code of

State Rules § 85-20-62.2. However, an administrative regulation is not, itself, the

equivalent of a statute. “To be valid, a regulation promulgated by an administrative

agency must carry out the legislative intent of its governing statutes.” Hale, 228 W.Va. at

785, 724 S.E.2d at 756. As a rule of statutory construction, we have repeatedly held that

                     [a]ny rules or regulations drafted by an agency must
              faithfully reflect the intention of the Legislature, as expressed
              in the controlling legislation. Where a statute contains clear
              and unambiguous language, an agency’s rules or regulations
              must give that language the same clear and unambiguous
              force and effect that the language commands in the statute.

Syl. Pt. 4, Maikotter v. Univ. of W.Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802

(1999). The “[p]rocedures and rules properly promulgated by an administrative agency

with authority to enforce a law will be upheld so long as they are reasonable and do not

enlarge, amend or repeal substantive rights created by statute.” Hale, 228 W.Va. at 786,

                                             8

724 S.E.2d at 757 (quoting Syl. Pt. 4, State ex rel. Callaghan v. W.Va. Civil Serv.

Comm’n, 166 W.Va. 117, 273 S.E.2d (1980)); see also, Anderson & Anderson

Contractors, Inc. v. Latimer, 162 W.Va. 803, 807-08, 257 S.E.2d 878, 881 (1979)

(“Although an agency may have power to promulgate rules and regulations, the rules and

regulations must be reasonable and conform to the laws enacted by the Legislature.”).



             At the outset of this Court’s analysis, it is imperative to acknowledge what

arguments Respondent fails to advance. Importantly, Respondent does not argue the

regulation was promulgated for health and safety concerns. Based on our review of the

record, we discern no medical rationale for the distinction between chelation therapy

performed in an office and chelation therapy performed elsewhere. We would be

extremely hesitant to invalidate the regulation if there was any medical justification

contained in the regulation or the record to support the distinction. The record reflects

that Dr. Murphy has treated dozens of patients in his office for heavy metal toxicity. He

has not experienced any patient suffering complications from the treatments, nor has he

encountered a patient who has not benefited from the removal of the heavy metals

through chelation therapy.



             Furthermore, Respondent does not argue that the regulation was

promulgated to promote economic efficiency. In fact, we discern no cost-saving rationale

for the distinction between chelation therapy performed in an office and chelation therapy

performed elsewhere. To the contrary, Dr. Murphy reported that chelation therapy
                                            9

generally costs $400 per unit and he provides this medical treatment in office at the

discounted rate of $105 per unit.



              Respondent does not articulate any rational basis to deny reimbursement for

medically necessary chelation therapy treatment when performed in an office. Even so,

Respondent argues the BOR properly applied the regulation to discourage chelation

therapy due to the controversial nature of the therapy. This contention lacks merit both

factually and legally. The controversy in the medical community surrounding chelation

therapy has to do with the use of that therapy for other medical problems including

arteriosclerosis (hardening of the arteries), not when the therapy is used to treat heavy

metal toxicity.

                     Chelation therapy has been approved by the federal
              Food and Drug Administration (FDA) only as a means for the
              removal of heavy metals from the body. However, non-FDA­
              approved, or “off-label,” use of medications by physicians is
              not prohibited by the FDA and is generally accepted in the
              medical profession. . . . Approximately 1,000 physicians in
              the United States engage in the off-label use of chelation
              therapy to treat arteriosclerosis and other vascular conditions.
              Of these 1,000 United States-based physicians, 750 belong to
              the American College for Advancement in Medicine
              (ACAM), which has 1,000 members worldwide and which
              endorsed chelation therapy as a valid course of treatment for
              occlusive vascular and degenerative diseases associated with
              aging. To that end, ACAM developed a protocol . . . for using
              chelation therapy to treat such diseases.

State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 149-50 (Mo.

2003) (citations and footnotes omitted). See also Friedrich v. Sec. of Health and Human

Servs., 894 F.2d 829, 838 (6th Cir. 1990) (upholding validity of regulation denying
                                        10

Medicare Part B reimbursement for chelation therapy to treat arteriosclerosis because

Secretary of Health and Human Services found it to be not reasonable and necessary for

the treatment of that illness).



              Respondent states the regulation does not require that the chelation therapy

be performed in a hospital; it just prohibits reimbursement when performed in an office.

This point only highlights the arbitrary nature of this portion of the regulation. Applying

the plain language of the regulation, Dr. Murphy could travel to Petitioner’s home to

administer the chelation therapy and the cost would be reimbursable. Ostensibly, Dr.

Murphy could walk out of his office and meet Petitioner in the parking lot of his medical

practice to administer the chelation therapy and the cost would be reimbursable; this

asinine example reveals the absence of any rational basis for the challenged portion of

West Virginia Code of State Rules § 85-20-62.2. Nevertheless, we are not asked in this

case to say whether we think this regulation is wise. We are asked to hold if it violates the

Act. And that, we do.



              To the extent Respondent argues the regulation furthers the legitimate goal

of ensuring chelation therapy is used only to treat appropriate medical conditions, its

position is nonsensical. Medical necessity and appropriateness of treatment have always




                                             11

been prerequisites to a worker’s recovery of medical benefits.10 Dr. Murphy administers

chelation therapy to Petitioner to treat her symptoms of neuropathy related to heavy metal

toxicity. There is no evidence Petitioner ever received chelation therapy as treatment for

arteriosclerosis or any other non-compensable condition. Consequently, we fail to see

how Petitioner’s chelation therapy treatment is in any way controversial.



             The primary reason Respondent’s argument lacks merit is because it

ignores the fundamental purpose of workers’ compensation legislation. There is no

rational basis to discourage medically necessary treatment; this reasoning is wholly

incompatible with the Act’s benevolent objectives. One of the overriding purposes of the

Act is to provide reasonable and necessary medical treatment to employees who are

injured on the job. W.Va. Code § 23-4-1. The regulation is discordant with West Virginia

Code § 23-4-3, which provides the claim administrator must provide medically related

and reasonably required medical treatment, healthcare or healthcare goods and services.

See generally, Riley Family Trust v. Hood, 874 P.2d 503, 504 (Colo. App. 1994)

(affirming payment of reasonable and necessary massage therapy prescribed by treating

physician and performed by certified massage therapist even though regulation required



      10
          In addition to their obligation as medical professionals, physicians have
financial incentives to provide appropriate medical treatment under the workers’
compensation system because the commission may suspend or permanently terminate
their right to obtain payment for services if the “commission finds that the health care
provider is regularly providing to injured employees health care that is excessive,
medically unreasonable or unethical[.]” W.Va. Code § 23-4-3c(1) (2010).

                                           12

therapy be administered by or under on-site supervision of a physician or registered

physical therapist).



              The challenged portion of the regulation is also contradicted by other

statutes, namely West Virginia Code § 23-1-1(b) (2010), which provides the Act shall

“be interpreted so as to assure the quick and efficient delivery of indemnity and medical

benefits to injured workers at a reasonable cost to the employers[.]” In addition, West

Virginia Code § 23-5-13 (2010), provides: “[i]t is also the policy of this chapter to

prohibit the denial of just claims of injured or deceased workers or their dependents on

technicalities.” Therefore, finding no legitimate justification for the challenged portion of

the regulation at issue, we conclude it is unreasonable to deny reimbursement for

medically necessary chelation therapy to treat heavy metal toxicity simply because the

therapy was performed in a physician’s office.



              Based on the foregoing, we hold that West Virginia Code of State Rules §

85-20-62.2 (2006), which provides, in part, that “[t]he Commission, Insurance

Commissioner, private carrier or self-insured employer, whichever is applicable, will not

reimburse for IV chelation therapy performed in office[,]” unreasonably denies

reimbursement when such treatment is medically necessary, in contravention of the

Workers’ Compensation Act, West Virginia Code § 23-4-3 (2010), and it is therefore

invalid. Petitioner suffers from peripheral neuropathy due to toxic exposure to heavy

metals at the workplace. She is entitled to receive reasonable and necessary medical
                                             13

benefits to treat this compensable condition whether she receives such treatment in her

physician’s office or elsewhere.



                                   IV. CONCLUSION

             For the reasons set forth above, the August 29, 2012, order of the BOR is

reversed, and this matter is remanded for entry of an order directing that Petitioner’s

reasonable expenses for medically necessary chelation therapy be reimbursed.



                                                               Reversed and remanded.




                                          14

