                            STATE OF WEST VIRGINIA

                                                                                 FILED
                         SUPREME COURT OF APPEALS                            October 20, 2014
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
SWVA, INC,                                                                  OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0793 (BOR Appeal Nos. 2047953, 2048080)
                   (Claim No. 2010125849)

JEREMY SMITH,

Claimant Below, Respondent


AND


JEREMY SMITH,

Claimant Below, Petitioner


vs.)   No. 13-0795 (BOR Appeal Nos. 2047953, 2048080)
                   (Claim No. 2010125849)

SWVA, INC.,

Employer Below, Respondent




                            MEMORANDUM DECISION
        These consolidated cases arise out of a consolidated Order of the Workers’ Compensation
Board of Review concerning Mr. Smith’s entitlement to chiropractic treatment, epidural steroid
injections, and a consultation with David Caraway, M.D.1

       In Case Number 13-0793, SWVA, Inc., the petitioner, by Steven K. Wellman, its
attorney, appeals the Board of Review’s Final Order dated July 1, 2013, in which the Board
affirmed November 21, 2012, and January 29, 2013, Orders of the Workers’ Compensation
Office of Judges. In its November 21, 2012, Order, the Office of Judges reversed the claims

1
 By an Order dated May 30, 2014, this Court consolidated Case Numbers 13-0793 and 13-0795
for purposes of consideration and decision.
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administrator’s February 1, 2012, decision which denied a repeat interventional consultation with
Dr. Caraway for up to two epidural steroid injections. In its January 29, 2013, Order, the Office
of Judges reversed the claims administrator’s April 20, 2012, decision denying lumbar epidural
steroid injections. In Case Number 13-0795, Jeremy Smith, by Edwin H. Pancake, his attorney,
appeals the Board of Review’s Final Order dated July 1, 2013, in which the Board affirmed a
November 21, 2012, Order of the Workers’ Compensation Office of Judges. In its November 21,
2012, Order, the Office of Judges affirmed the claims administrator’s December 14, 2011,
decision denying chiropractic treatment one to two times per week. The West Virginia Office of
the Insurance Commissioner, by Matthew Williams, its attorney, filed a timely response.

       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.

         Mr. Smith, a laborer, was injured in the course of his employment on January 11, 2010,
while hooking chains to a crane. His claim was held compensable for lumbar sprain/strain. In
December of 2010, the claims administrator authorized an interventional consultation with Dr.
Caraway. In February of 2011, lumbar epidural steroid injections were authorized. Mr. Smith
underwent the injections and Randall James, D.O., Mr. Smith’s treating physician, reported in a
January 17, 2012, treatment note that the treatment helped relieve the lower back pain. Dr. James
also stated that a neurosurgical consultation and repeat lumbar spine injections were warranted
and that Mr. Smith was not at maximum medical improvement. He reported in March of 2012,
that Mr. Smith was seen by Brett Osborn, M.D., a neurosurgeon. Dr. Osborn recommended
repeat epidural lumbar spine injections as well. He also recommended chiropractic treatments.

        Mr. Smith testified in a February 27, 2012, deposition that he had been under the
treatment of chiropractor Misty Hutchinson, for approximately eight years. Prior to his work-
related injury, he saw her for therapeutic massages and adjustments due to the heavy lifting that
his job requires. After the compensable injury, Dr. Hutchinson diagnosed lumbosacral
sprain/strain, lumbar displacement syndrome, and lumbar segmental dysfunction. His prognosis
was deemed to be fair and she recommended ultrasound, cryotherapy, electrical muscle
stimulation, and adjustments.

        Marsha Bailey, M.D., performed an independent medical evaluation of Mr. Smith on
September 15, 2011. At that time, he reported left lower back pain that radiated into his thoracic
spine and stabbing pain radiating into his right buttock. She diagnosed chronic lower back pain
without radiculopathy and found him to be at maximum medical improvement. She assessed 5%
whole person impairment and apportioned 3% to pre-existing lower back pain and 2% to the
compensable injury. She stated that a consultation with a neurosurgeon may be reasonable in
order to alleviate Mr. Smith’s concerns regarding his condition.


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        The claims administrator denied a request for chiropractic treatment one to two times per
week in its December 14, 2011, decision. On February 1, 2012, the claims administrator denied a
repeat interventional consultation with Dr. Caraway for up to two epidural steroid injections. In
its April 20, 2012, decision, the claims administrator again denied lumbar epidural steroid
injections.

        The Office of Judges affirmed the claims administrator’s December 14, 2011, decision in
its November 21, 2012, Order. The Office of Judges found that the claims administrator denied
chiropractic treatment based upon the fact that Dr. Hutchinson is not Mr. Smith’s treating
physician. Mr. Smith testified in deposition that he was treated by Dr. Hutchinson for
approximately eight years and saw her prior to his compensable injury. He also stated that
though Dr. James recommended he undergo chiropractic treatment, he did not refer him to Dr.
Hutchinson. The Office of Judges found that the claims administrator did not technically err in
denying the request on the basis that Dr. Hutchinson is not Mr. Smith’s treating physician;
however, the claims administrator is still required to provide all reasonable and necessary
medical treatment and a determination of whether the requested chiropractic treatment met those
requirements was still necessary. The Office of Judges determined that although Mr. Smith
continued to be treated by Dr. Hutchinson as of the time of his February 27, 2012, deposition, the
only treatment note of record from Dr. Hutchinson is one dated August 1, 2011, over four
months prior to the request at issue. The actual request is not of record and there is no current
medical information from Dr. Hutchinson which indicates the kind of treatment being requested,
the reason for the request, or whether the request is related to the compensable injury. Therefore,
the Office of Judges determined that Mr. Smith failed to meet his burden of proof to establish
that chiropractic treatment was medically necessary and reasonably required for the treatment of
his compensable injury.

        In a November 21, 2012, Order, the Office of Judges also reversed the claims
administrator’s February 1, 2012, decision and granted a repeat interventional consultation with
Dr. Caraway for up to two epidural steroid injections. The Office of Judges determined that the
claims administrator’s decision was based upon Dr. Bailey’s independent medical evaluation in
which she found that Mr. Smith had reached maximum medical improvement. However, the
Office of Judges noted that a finding of maximum medical improvement does not, in and of
itself, preclude all further treatment. A similar consultation was authorized by the claims
administrator in an Order dated December 7, 2010, and Mr. Smith underwent epidural steroid
injections that proved to be successful in relieving his lower back pain. At the time of the claims
administrator’s authorization, the only compensable component of the claim was lumbar
sprain/strain. The Office of Judges stated that though SWVA, Inc., argues per West Virginia
Code of State Rules § 85-20-37.5 (2006) that a sprain/strain should resolve in eight weeks, it is
notable that when the previous injections were authorized Mr. Smith had already exceeded the
guidelines. The Office of Judges found that Dr. James’s March 20, 2011, treatment note stated
that Mr. Smith was seen by Dr. Osborn, a neurosurgeon. Dr. Osborn recommended repeat
epidural steroid injections and Dr. James agreed with the recommendation and noted that the
previous injections had allowed Mr. Smith to continue to work.


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        SWVA, Inc., argued before the Office of Judges that the injections were for the treatment
of a pinched nerve which is not a compensable component of the claim. The Office of Judges
found that though Mr. Smith does have a pinched nerve, it could not be ignored that the claims
administrator previously deemed a consultation and epidural steroid injections appropriate
medical treatment for the compensable injury. The Office of Judges determined that even
accepting Dr. Bailey’s determination that Mr. Smith was at maximum medical improvement, the
prior injections were useful in keeping his condition stable and allowing him to continue
working.

       In its January 29, 2013, Order, the Office of Judges noted that epidural steroid injections
were authorized by an Order entered November 21, 2012. The Office of Judges reiterated the
reasoning from the November Order and again authorized the injections. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed both
Orders in its July 1, 2012, decision. We agree with the reasoning of the Office of Judges and the
conclusions of the Board of Review.

        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: October 20, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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