Bill Davis v. Joe Bennett Plumbing ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS August 13, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
BILL DAVIS, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0541 (BOR Appeal Nos. 2047782 & 2047870)
(Claim No. 2010134504)
JOE BENNETT PLUMBING,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Bill Davis, by Reginald D. Henry and Rodney A. Skeens, his attorneys, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Joe Bennett
Plumbing, by Jeffrey B. Brannon and Katherine Arritt, its attorneys, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated April 25, 2013, in
which the Board reversed an October 23, 2012, Order of the Workers’ Compensation Office of
Judges insofar as it authorized lumbar epidural injections. In its Order, the Office of Judges
reversed the claims administrator’s April 3, 2012, decision denying authorization for lumbar
epidural injections. The Board of Review also reversed a September 19, 2012, Order of the
Office of Judges insofar as it authorized pain management office visits. In its Order, the Office of
Judges modified the claims administrator’s June 22, 2012, decision denying Mr. Davis’s request
for pain management office visits and for the medications Oxy IR and Oxycodone.1 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.
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The Office of Judges’ October 23, 2012, Order also affirmed the claims administrator’s October 31, 2011, decision
closing the claim for temporary total disability benefits. The Board of Review’s April 25, 2013, decision affirmed
this aspect of the Office of Judges’ Order. On appeal, Mr. Davis has not requested additional temporary total
disability benefits.
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Mr. Davis worked for Joe Bennett Plumbing. On April 2, 2010, while carrying buckets of
concrete, Mr. Davis experienced a sudden onset of pain in his lower back and left leg. Following
the injury, an MRI was taken of his lumbar spine which showed degenerative disc disease at L3­
4 and L4-5. The MRI also showed a bulging disc at L3-4 and L4-5. The claims administrator
held the claim compensable for a lumbar sprain and, in several separate decisions, refused to add
various other lower back diagnoses to the claim, including left S1 radiculopathy, spondylosis,
and lumbar degenerative disc disease. Mr. Davis did not protest these decisions. The claims
administrator also granted Mr. Davis several different periods of temporary total disability
benefits. Mr. Davis was then treated by Barry K. Vaught, M.D., who found that he had reached
his maximum degree of medical improvement. Dr. Vaught also found evidence of lumbosacral
radiculopathy and recommended that Mr. Davis receive pain management treatment for this
condition. On October 31, 2011, the claims administrator closed the claim for temporary total
disability benefits based on Dr. Vaught’s report. Saghir R. Mir, M.D., then performed an
independent medical evaluation of Mr. Davis and found that he had lumbar radiculopathy and
spondylosis with nerve compression. Dr. Mir indicated that these conditions were related to the
compensable injury. Dr. Mir recommended that Mr. Davis receive additional pain management
visits, lumbar epidural injections, and Oxycodone to treat his compensable injury. On April 3,
2012, the claims administrator denied Mr. Davis’s request for lumbar epidural injections. On
June 22, 2012, the claims administrator also denied Mr. Davis’s request for pain management
office visits and the medication Oxy IR and Oxycodone. Prasadarao B. Mukkamala, M.D., then
performed a records review and determined that a lumbar sprain was the only compensable
condition of the claim. Dr. Mukkamala agreed with Dr. Mir that Mr. Davis had reached his
maximum degree of medical improvement with respect to this condition. Dr. Mukkamala further
determined that Mr. Davis should not be granted additional opioid medications. On September
19, 2012, the Office of Judges modified the claims administrator’s June 22, 2012, decision and
authorized the request for additional pain management office visits. The Office of Judges
affirmed the claims administrator’s denial of the medications Oxy IR and Oxycodone. On
October 23, 2012, the Office of Judges affirmed the claims administrators’ October 31, 2011,
decision. The Office of Judges also reversed the claims administrator’s April 3, 2012, decision
and authorized Mr. Davis’s request for lumbar epidural injections. On April 25, 2013, the Board
of Review reversed the September 19, 2012, Order of the Office of Judges insofar as it
authorized the request for pain management office visits. The Board of Review also reversed the
Office of Judges’ October 23, 2012, Order insofar as it authorized lumbar epidural injections.
The Board of Review affirmed the remainder of both Orders of the Office Judges.
In its September 19, 2012, Order, the Office of Judges concluded that Mr. Davis was
entitled to continuing periodic pain management office visits. The Office of Judges based this
determination on the report of Dr. Mir, who found that Mr. Davis had radiculopathy related to
his compensable injury. The Office of Judges also considered the opinion of Dr. Mukkamala, but
found his opinion less persuasive than Dr. Mir’s. The Office of Judges, however, concluded that
Mr. Davis should not be prescribed Oxy IR or Oxycodone because West Virginia Code of State
Rules § 85-20-53 (2006) only provided for short-term authorization for opioid medication.
2
In its October 23, 2012, Order, the Office of Judges concluded that Mr. Davis
demonstrated that he was entitled to lumbar epidural steroid injections. The Office of Judges
found that the medical records showed that Mr. Davis suffered from ongoing radiculopathy and
that the requested injections were related to that condition. The Office of Judge, however,
concluded that Mr. Davis did not demonstrate that he was entitled to additional temporary total
disability benefits. The Office of Judges based this determination on the reports of Dr. Mir and
Dr. Mukkamala. It found that Mr. Davis did not continue to be disabled after his claim was
closed.
The Board of Review concluded that the Office of Judges’ Orders were clearly wrong
insofar as they authorized pain management office visits and lumbar epidural injections. The
Board of Review found that the claims administrator had frequently denied adding additional
lumbar conditions to the claim, including the diagnoses of left S1 radiculopathy and spondylosis.
It found that Mr. Davis did not protest these decisions. Since a lumbar sprain was the only
compensable condition of the claim, the Board of Review determined that the pain management
office visits and lumbar epidural injections, which were related to Mr. Davis’s radiculopathy,
were not needed to treat the compensable injury.
Mr. Davis has limited his appeal to a request of authorization for additional pain
management office visits and lumbar epidural injections. Mr. Davis argues that treatment
requests are related to S1 radiculopathy, which he asserts is directly related to his compensable
injury.
We agree with the conclusions of the Board of Review. Mr. Davis has not demonstrated
that the requested pain management office visits and lumbar epidural injections are medically
related and reasonably required to treat his compensable injury. The evidence in the record
shows that the requested treatments are related to non-compensable conditions, including lower
back radiculopathy. The only compensable condition in the claim is a lumbar strain. The
opinions of Dr. Mir and Dr. Mukkamala demonstrate that Mr. Davis has reached his maximum
degree of medical improvement with respect to this condition. The record does not support Mr.
Davis’s need for additional treatment in relation to his April 2, 2010, injury.
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: August 13, 2014
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CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II
DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
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