Allison v. City of Gary ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
TRACY ALLISON,
FILED
Claimant Below, Petitioner
May 20, 2021
EDYTHE NASH GAISER, CLERK
vs.) No. 20-0275 (BOR Appeal No. 2054815) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2016003953)
THE CITY OF GARY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Tracy Allison, by counsel Gregory S. Prudich, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). The City of Gary, by
counsel Jillian L. Moore, filed a timely response.
The issue on appeal is medical treatment. The claims administrator denied a request for
physical therapy on March 20, 2019. On November 7, 2019, the Workers’ Compensation Office
of Judges (“Office of Judges”) affirmed the claims administrator’s decision to deny the request
for physical therapy. This appeal arises from the Board of Review’s Order dated March 4, 2020,
in which the Board of Review affirmed the Order of the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions[.]
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(c) If the decision of the board represents an affirmation of a prior ruling by both
the commission and 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 provision, is clearly the result of erroneous conclusions
of law, or is based upon the board’s material misstatement or mischaracterization
of particular components of the evidentiary record. The court may not conduct a
de novo re-weighing of the evidentiary record. . . .
See Hammons v. W. Va. Office of Ins. Comm’r, 235 W. Va. 577, ___, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. W. Va. Office Insurance Commission, 230 W.
Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law
arising in the context of decisions issued by the Board. See also Davies v. W. Va. Office of Ins.
Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). With these standards in mind, we
proceed to determine whether the Board of Review committed error in affirming the decision of
the Office of Judges.
Ms. Allison suffered a right knee injury on August 3, 2015, when she slipped and fell
while exiting a vehicle. An MRI revealed an anterior cruciate ligament (“ACL”) tear. She was
initially treated by Phillip Branson, M.D., who performed ACL reconstruction surgery with
allograft tissue on February 26, 2016. After surgery, Ms. Allison worked on her range of motion
while in physical therapy; however, she had difficulty regaining most of her strength. Dr.
Branson removed the staple from her right tibia on October 21, 2016, and she once again
returned to physical therapy.
Because Ms. Allison continued to experience symptoms, she was referred to Edward
McDonough, M.D., with WVU Medicine. Dr. McDonough determined that the primary knee
pain was coming from hypersensitivity around the surgical incision. Ms. Allison was
considerably lacking in range of motion and strength in the right knee. Dr. McDonough
recommended physical therapy to work on desensitization techniques over the proximal tibia.
She was fitted for a knee brace for additional support and compression of the knee, and she was
told to follow-up on an as-needed basis.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on April 18,
2017. During the examination, Ms. Allison reported ongoing right knee pain. She had recently
completed the physical therapy recommended by Dr. McDonough and had returned to work. Dr.
Mukkamala diagnosed sprain of the right knee, status post partial lateral meniscectomy and ACL
repair. He concluded that she had reached her maximum degree of medical improvement. Using
the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993), Dr. Mukkamala found 4% whole person impairment resulting from the compensable
injury.
Ms. Allison returned to Dr. McDonough on December 4, 2018, and he submitted a
request for additional physical therapy for six to eight weeks. The associated diagnoses were
acute pain of the right knee and radicular pain of the right lower extremity. On March 20, 2019,
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the claims administrator denied the request for physical therapy. The Order provided multiple
reasons for the denial and stated:
“According to an IME by Dr. Prasadarao Mukkamala, you reached your
maximum medical improvement (“MMI”) on 4/18/17 with no further treatment
necessary. Dr. Bruce Guberman agreed with those findings in his 1/19/18
evaluation. Rule 20 indicates physical therapy after a claimant reached MMI only
when there are flare-ups due to job related activities. See W. Va. C.S.R. § 85-20-
46.7. Dr. McDonough documented on 12/4/18 that you were performing a seated
job and had no symptoms while seated. Furthermore, you reported no significant
improvement with previous therapy. Finally, the treatment request indicates that
the treatment is aimed at treating acute pain of the right knee and radicular pain of
the right lower extremity. Dr. McDonough’s 12/4/18 treatment note fails to
indicate how acute pain in 2018 is related to a 2015 injury, and radicular pain in
the right lower extremity is not a compensable condition. For these reasons, the
request to authorize physical therapy 2-3 times per week for 6-8 weeks is hereby,
denied.”
Ms. Allison protested the claims administrator’s decision.
Following her protest, Ms. Allison underwent an independent medical evaluation with
David Jenkinson, M.D., on April 16, 2019. During the evaluation, she reported that she was
currently working in the light duty category for the City of Gary, and she continued to have pain
on the medial side of her knee. Ms. Allison complained of numbness of the anterior aspect of her
right lower leg and stated that her knee “throbs at night.” She also reported that she had fallen
several times because of her knee. She was diagnosed with a torn lateral meniscus and a torn
ACL in the right knee. Dr. Jenkinson found some degenerative changes in the right knee which
were pre-existing and non-injury related. He opined that she required no further treatment for the
injury, and he placed her at maximum medical improvement. He found no medical reason that
additional therapy would be beneficial.
The Office of Judges issued its decision on November 7, 2019, and found that the
evidentiary record failed to establish medical necessity for physical therapy in relation to the
2015 compensable injury. The Office of Judges also found that none of the medical evidence
offered by Ms. Allison showed that physical therapy was necessary because of the compensable
injury. It was noted that Dr. Jenkinson was of the opinion that it was unlikely that further therapy
would be beneficial. Accordingly, the Office of Judges affirmed the March 20, 2019, Order by
the claims administrator denying Ms. Allison’s request for additional physical therapy. The
Board of Review issued an Order dated March 4, 2020, adopting the findings of fact and
conclusions of law of the Office of Judges and affirmed the rejection for physical therapy.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. There is simply no evidence that Ms. Allison’s acute pain, found by Dr.
McDonough in December of 2018, was related to the compensable injury or any of her
occupational duties. The record contains no explanation from Dr. McDonough addressing
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medical necessity and reasonableness. The medical evidence of record is insufficient to establish
that physical therapy is reasonable and necessary in relation to Ms. Allison’s compensable injury
of August 3, 2015. For the foregoing reasons, the Board of Review’s decision is affirmed.
Affirmed.
ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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