                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
AMANDA S. HERSMAN,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1168	 (BOR Appeal No. 2047068)
                   (Claim No. 2010116715)

CPI IMAGES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Amanda S. Hersman, by George Zivkovich, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. CPI Images, LLC, by Jonathan
Jacks and Lisa W. Hunter, its attorneys, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated September 21, 2012, in
which the Board affirmed a March 9, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 6, 2010,
decision denying authorization for chiropractic treatments; its October 12, 2010, decision
denying a request to reopen the claim for temporary total disability benefits; and its February 4,
2011, decision denying a request to add additional compensable components to the claim. 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. Hersman was employed as a photo studio manager and was injured on December 5,
2009, when she became entangled in a drapery and fell. On December 23, 2009, the claim was
held compensable for sprain of the coccyx, and Ms. Hersman was granted temporary total
disability benefits from December 6, 2009, through December 13, 2009. On February 23, 2010,
Prasadarao Mukkamala, M.D., performed an independent medical evaluation and found that Ms.
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Hersman has reached maximum medical improvement. On February 28, 2010, lumbar and
thoracic spine MRIs were performed, which revealed only congenital abnormalities. On July 6,
2010, the claims administrator denied a request for authorization of chiropractic treatments. On
August 11, 2010, Bradley George, D.C., filed a reopening application. He indicated on the
application that there has not been a progression or aggravation of the compensable injury.
Additionally, he requested authorization for chiropractic treatment and stated that Ms. Hersman
was temporarily and totally disabled from June 29, 2010, through September 1, 2010. On
October 12, 2010, the claims administrator denied a request to reopen the claim for temporary
total disability benefits. On February 4, 2011, the claims administrator denied a request to add
sprain of the hip and thigh, sacroiliac sprain, lumbar sprain, and thoracic or lumbosacral neuritis
or radiculitis as compensable components of the claim. In a letter to Ms. Hersman’s attorney
dated April 25, 2011, Dr. George stated that sprain of the hip, sacroiliac sprain, lumbar sprain,
and lumbosacral neuritis or radiculitis are the diagnoses that are most representative of Ms.
Hersman’s compensable injury. He further stated that he believes that she should receive
temporary total disability benefits and that chiropractic treatment is necessary because it is the
only treatment that has given her relief. David Soulsby, M.D., performed an independent medical
evaluation on June 10, 2011, and found that Ms. Hersman had reached maximum medical
improvement. He found that there is no evidence that Ms. Hersman suffered a sprain of the hip,
thigh, sacroiliac joint, lumbar spine, thoracic spine, or lumbosacral region. He further found that
there is no evidence of lumbosacral neuritis or radiculitis resulting from the compensable injury.
He concluded that chiropractic treatment would not be useful in the treatment of the
compensable injury.

        In its Order affirming the July 6, 2010, October 12, 2010, and February 4, 2011, claims
administrator’s decisions, the Office of Judges held that a preponderance of the evidence fails to
demonstrate that chiropractic treatment is medically related and reasonably necessary for the
treatment of the compensable injury; that Ms. Hersman has failed to show a prima facie cause for
reopening the claim for temporary total disability benefits; and that sprain of the hip and thigh,
sacroiliac sprain, lumbar sprain, and thoracic or lumbosacral neuritis or radiculitis should not be
added as compensable components of the claim. Ms. Hersman disputes this finding and asserts
that the evidence of record demonstrates that chiropractic treatment is medically related and
reasonably required for the treatment of her compensable injury, that she is entitled to have her
claim reopened for temporary total disability benefits, and that the requested diagnoses should be
added as compensable components of the claim.

        The Office of Judges found that given Dr. Soulsby’s opinion that chiropractic treatment
would not be beneficial for the treatment of the compensable injury, the essentially negative
MRIs of record, the compensability of only sprain of the coccyx, and the fact that Ms. Hersman
has reached maximum medical improvement, the evidence of record indicates that the claims
administrator’s denial of authorization for chiropractic treatment was proper. With regard to Ms.
Hersman’s request to reopen the claim, the Office of Judges noted that Dr. George indicated on
the reopening application that no progression or aggravation of the compensable injury had
occurred. The Office of Judges then found that no medical documentation was submitted
supporting the reopening application. The Office of Judges further found that Ms. Hersman has
failed to demonstrate that she suffered an aggravation or progression of her compensable injury.
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With regard to Ms. Hersman’s request for a diagnosis update, the Office of Judges found that
there is no objective medical evidence demonstrating that she suffered an injury to the thoracic
or lumbar spine. The Office of Judges then found that the addition of additional diagnoses to the
claim one year after Ms. Hersman has reached maximum medical improvement is not supported
by the evidentiary record. The Board of Review reached the same reasoned conclusions in its
decision of September 21, 2012. We agree with the reasoning and 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: March 18, 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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