Barbara J. Marstiller v. W. VA. United Health Systems

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS March 24, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
BARBARA J. MARSTILLER, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) Nos. 14-1244 (BOR Appeal Nos. 2049540, 2049754 & 2050022)
15-0303 (Claim No. 2010130264)
15-0464
WEST VIRGINIA UNITED HEALTH SYSTEMS,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Barbara J. Marstiller, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia United Health
Systems, by T. Jonathan Cook, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Orders dated November 5, 2014;
March 9, 2015; and April 22, 2015. In the November 5, 2014, Order, the Board of Review
affirmed, in part, and reversed, in part, a May 30, 2014, Order of the Workers’ Compensation
Office of Judges. The Board of Review reversed the Office of Judges’ insofar as it added the
conditions of right labral tear and chondromalacia of the superior acetabular weight bearing
dome. The Board of Review affirmed all the other findings of the Office of Judges. In its Order,
the Office of Judges reversed the claims administrator’s January 2, 2013, decision which denied
the request to add the diagnoses sprain of the lumbar region and pain in joint, pelvic region and
thigh to the claim. The Office of Judges reversed the claims administrator’s January 14, 2013,
decision which denied the request for a diagnosis update to include hip pain. The Office of
Judges reversed, in part, and affirmed, in part, the claims administrator’s January 14, 2013,
decision which denied the request for a diagnosis update to include right hip pain, lumbar
radiculitis, and lumbar facet arthritis. The Office of Judges included right hip pain but denied
lumbar radiculitis, and lumbar facet arthritis. The Office of Judges reversed, in part, and
affirmed, in part, the claims administrator’s January 23, 2013, decision denying disorder of hip
joint, right hip pain, depression, and sciatica to the claim. The Office of Judges affirmed the
claims administrator’s decision regarding the denial of disorder of hip joint and sciatica. The
Office of Judges also concluded that the depression ruling was premature. The Office of Judges
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reversed the claims administrator’s January 23, 2013, decisions that denied the request to add a
right labral tear and chondromalacia of superior acetabular weight bearing dome to the claim and
found the conditions compensable. Finally, the Office of Judges affirmed, in part, and reversed,
in part, the January 23, 2013, decision of the claims administrator which corrected the January
14, 2013, decision of the claims administrator. The decision of January 23, 2015, found that right
hip pain, lumbar radiculitis, and facet arthrosis all were not compensable conditions. The Office
of Judges found that right hip pain was compensable. However, it held that the lumbar radiculitis
and facet arthrosis were not compensable conditions.
In its March 9, 2015, decision, the Board of Review affirmed an August 13, 2014, Order
of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affirmed the
claims administrator’s May 11, 2012, decision denying authorization for Oxycodone and
Valium. The Office of Judges affirmed the claims administrator’s May 31, 2012, decision
denying authorization for transforaminal epidural injections. It affirmed the claims
administrator’s June 15, 2012, decision denying authorization for right knee treatment. It
affirmed the claims administrator’s June 15, 2012, decision denying authorization for
Oxycodone. It affirmed the claims administrator’s June 28, 2012, decision denying
reimbursement for a bill from Carolina Health Specialist for $267.30. It affirmed the claims
administrator’s July 3, 2012, decision denying reimbursement for a bill from Carolina Health
Specialist for $267.30 and Grand Strand Regional for $100.00. It affirmed the claims
administrator’s July 3, 2012, decision denying authorization for Cymbalta. It reversed the claims
administrator’s September 6, 2012, decision denying authorization for a total hip replacement
and remanded with instructions that authorization be granted. It affirmed, in part, and reversed,
in part, the claims administrator’s November 13, 2012, decision denying authorization for
Cymbalta, Klonopin, and Robaxin. The decision was affirmed in regard to the denial of
Klonopin and reversed in regard to the denial of Cymbalta and Robaxin. The Office of Judges
reversed the claims administrator’s January 2, 2013, decision denying authorization for total hip
replacement. It affirmed the claims administrator’s January 2, 2013, decision denying
authorization for counseling for chronic pain. It reversed the claims administrator’s January 2,
2013, decision denying authorization for Cymbalta and Neurontin. It affirmed, in part, and
reversed, in part, the claims administrator’s January 23, 2013, decision denying authorization for
Valium, physical therapy for the right hip, physical therapy for the lower back, and an orthopedic
evaluation of the right knee. The Office of Judges affirmed the denial of Valium, physical
therapy for the lower back, and an orthopedic right knee evaluation but reversed the denial of
physical therapy for the right hip. It affirmed, in part, and reversed, in part, the claims
administrator’s January 29, 2013, decision denying authorization for Cymbalta, Valium,
Neurontin, physical therapy and a follow-up visit. The Office of Judges affirmed the denial of
Valium but reversed the denial of Cymbalta, Neurontin, physical therapy, and a follow-up visit.
It affirmed the claims administrator’s February 12, 2013, decision denying authorization for an
office visit regarding radiculitis. It affirmed the claims administrator’s March 21, 2013, decision
denying authorization for an epidural steroid injection. It affirmed, in part, and reversed, in part,
the claims administrator’s May 17, 2013, decision denying authorization for a lumbar MRI,
referral to a pain clinic, physical therapy, and Baclofen. The Office of Judges affirmed the
decision denying the lumbar MRI, referral to the pain clinic, and Baclofen. The denial of
physical therapy was reversed. It affirmed the claims administrator’s October 7, 2013, decision
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denying authorization for payment of services rendered on September 16, 2013, for pain in the
joint, pelvic region, and thigh. It also affirmed the claims administrator’s February 28, 2014,
decision denying authorization for Ultram and Hydrocodone.
In its April 22, 2015, decision, the Board of Review affirmed a November 6, 2014, Order
of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affirmed the
claims administrator’s January 29, 2014, decision to deny the request for payment of a bill from
West Virginia University Medical Corporation for the service date of November 25, 2013. 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. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
Ms. Marstiller, an employee of West Virginia United Health Systems, injured her hip and
back on March 30, 2010, when she hopped down from a tall chair. An MRI of the lumbosacral
spine conducted the next day revealed very small disc bulges with no evidence of nerve root
impingement or canal stenosis. From April 14, 2010, through July 7, 2010, Ms. Marstiller
underwent conservative treatment including physical therapy. Ms. Marstiller was progressing
and tolerated the activity with mild complaints of pain and difficulty. However, she began
experiencing burning pain in her hips. She received treatment for this complaint from Joseph
Voelker, M.D., who diagnosed her with lumbosacral spondylosis and degenerative changes of
the low back as well as left leg pain. Dr. Voelker interpreted the March 31, 2010, MRI as
showing mild degenerative disc disease with a L4-5 disc bulge without nerve root compression.
He recommended that Ms. Marstiller continue conservative treatment with physical therapy.
On May 28, 2010, the claims administrator approved the application for benefits. The
accepted diagnosis was low back strain/sprain. An internal provider letter by Matthew Lively,
D.O., on July 22, 2010, indicated Ms. Marstiller has low back pain and right lateral hip pain. At
that time she occasionally had symptoms that radiated down the posterior part of her leg to her
knee. This sensation continued through her many visits to doctors throughout her appeal. An
August 18, 2010, MRI of the right hip revealed mild greater trochanteric bursitis and a small
focal tear or separation of the chondrolabral junction at the anterior-superior acetabular labrum.
On November 3, 2010, an independent medical evaluation from William Mills, M.D.,
was completed. Dr. Mills diagnosed chronic and non-radicular low back pain. He found Ms.
Marstiller to be at her maximum degree of medical improvement with regard to her back. Dr.
Mills opined that he could not state whether Ms. Marstiller had reached her maximum degree of
medical improvement in regards to her hip. He recommended that she see a hip specialist. From
November 11, 2010, through April 18, 2012, Ms. Marstiller received treatment from Scott Sauer,
M.D., an orthopedic surgeon, for lumbar facet arthropathy, bursitis of the bilateral hips, bilateral
hip pain, and lumbar radiculitis.
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On November 29, 2010, the claims administrator added the diagnosis of hip pain. On
December 27, 2010, Ms. Marstiller underwent a contrast MRI of the right hip. It revealed focal
defect with abnormal extension of contrast into the medial joint space/cartilage. No definite
unstable fragment was identified. The right femoral head was normal in signal and morphology
which suggested an acute fracture, avascular necrosis, or a stress fracture.
On February 3, 2011, an independent medical evaluation from Paul Bachwitt, M.D., was
completed. He found that Ms. Marstiller was not at her maximum degree of medical
improvement for the right hip injury. Dr. Bachwitt opined that an arthroscopic examination of
the right hip may or may not benefit her, but it should be allowed because she has had two
studies that show abnormalities in the anterior labrum of the hip. Also her treating physician
recommended the surgery.
On March 8, 2011, an operative report from Roper Hospital Ambulatory Surgery & Pain
Management indicated Ms. Marstiller underwent an arthroscopic right hip labral debridement, an
intraarticular arthroscopic right hip iliopsoas release, and an arthroscopic right hip synovectomy
and chondroplasty. The post-operative diagnoses were right hip labral tear, chrondromalacia of
the superior aspect of the acetabulum, internal snapping hip, and hip synovitis. The superior
labrum was found to be degenerated. Then, on June 15, 2011, notes from Dr. Sauer indicated Ms.
Marstiller reported a lot of right hip pain. He found that Ms. Marstiller had a new onset of
radicular symptoms. On June 23, 2011, an MRI of the lumbar spine revealed mild degenerative
facet changes bilaterally at L4-5 and L5-S1, mild disc space narrowing at L5-S1, and
degenerative arthropathy in the right hip. No impingement, irritation, or compression of any
nerve root was reported.
On July 21, 2011, a report from Dr. McIntosh indicated that Ms. Marstiller fell coming
out of her bathroom onto her right knee and felt like she could not put weight on her leg because
of the pain. Dr. McIntosh opined her pain was complicated by her back and other issues. On
August 4, 2011, Dr. Sauer authored a note which stated that he wanted to clarify that he was
requesting an injection for Ms. Marstiller’s low back pain and not for her hip pain. He believed
Ms. Marstiller had degenerative disc disease at the L4-5 and L5-S1 levels, which was causing
sciatic symptoms in her right leg.
A second independent medical evaluation from Dr. Bachwitt was completed on August
29, 2011. Dr. Bachwitt found Ms. Marstiller had weakness of all low back muscles controlled by
the sciatic nerve and spinal cord. Dr. Bachwitt felt that she was not at her maximum degree of
medical improvement for her low back. Dr. Bachwitt also opined that her hip problems were
related to the March 30, 2010, work injury. He also noted Ms. Marstiller had not yet reached her
maximum degree of medical improvement in regard to her hip. A diagnosis update was
completed by Dr. McIntosh on December 13, 2011. The primary diagnosis was right hip labral
tear and the secondary diagnosis was chrondromalacia of superior acetabular weight bearing
dome.
On January 5, 2012, Dr. Bachwitt finished an addendum to his original report. Dr.
Bachwitt asserted that he reviewed the additional records from Palmetta Orthopedics of
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Charleston and does not feel Ms. Marstiller should undergo any type of surgical procedure based
upon her lack of control of active motion of her right hip during his previous examination. He
stated that she had unusual weakness in all muscles controlled by the sciatic nerve and spinal
cord in the low back. He also was not able to perform the low back examination. Dr. Bachwitt
noted that he was unable to explain any of her symptoms. He opined that until she received a
diagnosis and obtains control of the active motion of her right hip, she should definitely not
undergo any type of surgery.
From January 23, 2012, through March 21, 2012, office notes by Dr. Sauer indicated Ms.
Marstiller had complaints of right radicular symptoms with pain radiating to the right heel. The
plan called for her to undergo a repeat MRI. On April 18, 2012, office notes by Dr. Sauer
indicated Ms. Marstiller should undergo an evaluation of the right hip and follow-up at the next
appointment for transforaminal epidural injection to treat the low back and right leg pain. On
May 8, 2012, based upon Ms. Marstiller’s increasing depression and anxiety, Dr. Sauer also
requested authorization for a psychiatric evaluation, a referral to the Medical University of South
Carolina Orthopedic Department, and an epidural steroid injection. On May 11, 2012, the claims
administrator denied authorization for Oxycodone and Valium. On May 31, 2012, it also denied
authorization for transforaminal epidural injections.
A controlled substance report issued by Dr. Sauer indicated on June 7, 2012, that Ms.
Marstiller needed continued opioid therapy due to her altered gait from pain and appearance of
distress. On June 15, 2012, the claims administrator denied authorization for right knee treatment
and Oxycodone. On June 28, 2012, the claims administrator denied reimbursement for a bill
from Carolina Health Specialist for $267.30. On July 3, 2012, it denied reimbursement for a bill
from Carolina Health Specialist for $267.30 and Grand Strand Regional for $100.00. The claims
administrator also denied authorization for the medication Cymbalta on July 3, 2012.
Following these denials, Ms. Marstiller received treatment from Brian Hamlin, M.D.,
who found that she had significant degenerative joint disease of the right hip. He felt she would
be a good candidate for a right total hip replacement. A medical statement by Anna Allen, M.D.,
was completed on September 20, 2012. Dr. Allen requested authorization for a right total hip
replacement. On September 21, 2012, Ms. Marstiller underwent hip replacement surgery. The
post-operative diagnosis was degenerative joint disease of the right hip. On November 2, 2012,
Ms. Marstiller had a follow-up. The plan called for Ms. Marstiller to wean off the Valium so
another medication to decrease her depression symptoms, such as Cymbalta, could be prescribed.
On September 6, 2012, the claims administrator denied authorization for a total hip replacement.
On November 13, 2012, the claims administrator denied authorization for Cymbalta, Klonopin,
and Robaxin.
An independent medical report from Chuanfang Jin, M.D., was authored on November
13, 2012. Dr. Jin noted it was difficult to find evidence supporting a true occupational injury. Dr.
Jin opined that it is quite likely that her symptoms are related to her degenerative lumbar disc
disease that manifested while she was working. Dr. Jin also determined that Ms. Marstiller had
reached her maximum degree of medical improvement.
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On January 2, 2013, the claims administrator denied the request from Dr. Allen to add
sprain of the lumbar region and pain in the joint, pelvic region, and thigh to the claim. The denial
was based upon Dr. Jin’s November 13, 2012, independent medical evaluation. The claims
administrator also denied authorization for total hip replacement, counseling for chronic pain,
and authorization for Cymbalta and Neurontin.
On January 14, 2013, the claims administrator denied the request from Dr. Sauer to
update the diagnosis to include hip pain based upon Dr. Jin’s independent medical evaluation.
The claims administrator also denied the request from Dr. Sauer to update the diagnosis to
include right hip pain, lumbar radiculitis, and lumbar facet arthritis. This decision was also based
upon Dr. Jin’s evaluation. An office note from Dr. Allen on January 18, 2012, indicated Ms.
Marstiller was still having hip problems. Then, on January 23, 2013, the claims administrator
issued two decisions correcting the previous decision dated January 14, 2013, which denied the
request from Dr. Sauer to update the diagnosis to include hip pain. The decision recognized that
hip pain has already been accepted in the claim. The claims administrator denied the request
from Dr. McIntosh to update the diagnosis to include right labral tear and chondromalacia of the
superior acetabular weight bearing dome on January 23, 2012. The claims administrator also
denied the request from Dr. Allen to update the diagnosis to include disorder of the hip joint,
right hip pain, depression, and sciatica. It also denied authorization for Valium, physical therapy
for the right hip, physical therapy for the lower back, and an orthopedic evaluation of the right
knee. Furthermore, it denied authorization for Cymbalta, Valium, Neurontin, physical therapy,
and a follow-up visit. On February 12, 2013, the claims administrator denied authorization for an
office visit regarding radiculitis.
On February 26, 2013, a report from Dr. Allen was completed. Dr. Allen found that Ms.
Marstiller has a long history of depression which has been worsened by the current medical
situation and subsequent financial difficulties. He believed her symptoms of depression were
being exacerbated by her pain. Dr. Allen recommended counseling on pain management and
coping. The claims administrator denied authorization for an epidural steroid injection on March
21, 2013.
An independent medical evaluation from Bill Hennessey, M.D., was completed on May
10, 2013. Dr. Hennessey opined that there was insufficient evidence that an injury occurred from
getting off a chair on one occasion. He recommended no further treatment. Dr. Hennessey found
her to be at her maximum degree of medical improvement.
The claims administrator denied authorization for a lumbar MRI, referral to a pain clinic,
physical therapy, and Baclofen on May 17, 2013. On October 7, 2013, the claims administrator
denied authorization for payment of services rendered on September 16, 2013, for pain in the
joint, pelvic region, and thigh. On February 28, 2014, the claims administrator denied
authorization for Ultram and Hydrocodone. On January 29, 2014, the claims administrator
denied the request for payment of a bill from West Virginia University Medical Corporation for
the service date of November 25, 2013. Ms. Marstiller protested all these claims administrator
decisions to the Office of Judges and the Board of Review. The Board of Review considered
these claims administrator decision in three separate decisions dated November 5, 2014; March
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9, 2015; and April 22, 2015. Ms. Marstiller ultimately appealed the adverse holdings of these
Board of Review decisions to this Court in Appeal Nos. 14-1244, 15-0303, and 15-0464.
In Appeal No. 14-1244, the Office of Judges found that Ms. Marstiller did not establish
by a preponderance of the evidence that the diagnoses dealing with the lumbar spine were
causally related to the compensable injury. The Office of Judges noted that the diagnostic
evidence of record does not establish an impingement, irritation, or compression which would
warrant a finding of radiculitis and sciatica. The Office of Judges based this finding on the
March 31, 2010, MRI and the June 23, 2011, MRI. Both revealed no evidence of nerve root
impingement, canal stenosis, or compression of any nerve root. The Office of Judges specifically
noted that Dr. Voelker believed that the March 31, 2010, MRI revealed mild degenerative disc
disease and spondylosis. The Office of Judges also relied on the independent medical evaluation
of Dr. Mills who found that Ms. Marstiller’s back pain was non-radicular. The Office of Judges
found that even Dr. Sauer, Ms. Marstiller’s treating physician, noted that she had degenerative
disc disease at the L4-5 and L5-S1 level, which was causing sciatic symptoms in her right leg.
The Office of Judges also reversed the claims administrator’s denial of Ms. Marstiller’s
request to add depression as a compensable condition of the claim. The Office of Judges
determined that the denial was premature and remanded this issue to the claims administrator for
authorization of a psychiatric referral and evaluation. The Office of Judges directed the claims
administrator to consider the resulting psychiatric evaluation prior to rendering a decision on Ms.
Marstiller’s request to add depression to her claim.
The Office of Judges, however, found that the labral tear and chondromalacia of the
superior acetabular weight bearing dome were received in the course of and as a result of Ms.
Marstiller’s employment. The Office of Judges noted that these conditions were revealed on the
MRI of the right hip conducted on August 18, 2010. The MRI of the right hip conducted on
December 27, 2010, corroborated the finding of a right labral tear. Dr. Bachwitt’s February 3,
2011, evaluation also indicated that the hip issues were related to Ms. Marstiller’s work injury.
The Office of Judges acknowledged that Ms. Marstiller had degenerative issues in her hip but
that the degenerative joint disease did not bring about the labral tear and chondromalacia. It
found that there was no evidence on record of a left hip labral tear or that the right labral tear pre­
existed the claim. The Office of Judges did not believe that either Dr. Jin’s evaluation or Dr.
Hennessey’s evaluation were as persuasive as the reports of Dr. Sauer, her treating physician, or
of Dr. Bachwitt.
In its November 5, 2014, decision, the Board of Review determined that the Office of
Judges was clearly wrong in finding that a right labral tear and chondromalacia of the superior
acetabular weight bearing dome were compensable conditions of the claim. The Board found that
there was no medical rationale to establish any connection between the occupational injury of
March 30, 2010, and the two hip diagnosis codes based upon the medical record and the findings
of Dr. Jin. Therefore, the Board found Ms. Marstiller failed to demonstrate a causal relationship
between her current right hip condition and the compensable injury. The Board of Review
affirmed the remaining provisions of the Office of Judges’ May 30, 2014, Order.
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The Board of Review’s decision in Appeal No. 14-1244 is reversed, in part, and affirmed,
in part. Insofar as the Board of Review reversed the Office of Judges’ decision to hold the claim
compensable for a labral tear and chondromalacia of the superior acetabular weight bearing
dome, the Board of Review’s decision is based upon a material misstatement and
mischaracterization of the evidentiary record. The Office of Judges found that the labral tear and
chondromalacia of the superior acetabular weight bearing dome were received in the course of
and as a result of her employment. The Office of Judges based this determination on ample
evidence. As the Office of Judges pointed out, both Dr. Sauer and Dr. Bachwitt believed that the
compensable injury caused Ms. Marstiller’s hip issues. The Office of Judges was in a better
position to determine the relevance and weight of this evidence, and the Board of Review should
not have overturned its Order. The Board of Review, however, was correct insofar as it affirmed
the remaining provisions of the Office of Judges’ Order. The Office of Judges’ Order to remand
the claim for a psychiatric evaluation was consistent with this Court’s holding in Hale v. West
Virginia Office of the Insurance Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012), and the
Board of Review was correct to affirm this aspect of the Order.
In Appeal No. 15-0303, the Office of Judges consolidated nineteen claims administrator
decisions primarily involving treatment requests related to Ms. Marstiller’s low back, hip, and
right knee. The Office of Judges determined that the request for a total right hip replacement was
medically related and reasonably required to treat her hip injury. The Office of Judges noted that
the claim had been held compensable for pain in right hip, labral tear of the right hip, and
chondromalacia of the superior acetabular weight bearing dome of the hip. The Office of Judges
noted that Dr. Bachwitt recommended that Ms. Marstiller not receive any additional surgery.
However, it found that Dr. Hamlin’s assessment, during which he determined that she was a
good candidate for a total hip replacement, was more reliable. Dr. Hamlin related the need for a
total hip replacement to the compensable labral hip tear and the failed labral repair. The Office of
Judges determined that because the right labral tear has been held compensable and could not be
surgically repaired via arthroscopy, the requested total hip replacement was medically related
and reasonably required. In its March 9, 2015, decision the Board of Review affirmed this aspect
of the Office of Judges’ Order.
The Office of Judges also determined that all of Ms. Marstiller’s requests for physical
therapy related to her hip were medically related and reasonably required. The Office of Judges
noted that the physical therapy requested by Dr. Allen on September 20, 2012, was one day prior
to Ms. Marstiller’s right hip arthroplasty and was related to the authorized surgery. The Office of
Judges also found that the November 5, 2012, request for physical therapy from Lakeside
Physical Therapy was related to her request for a total hip replacement. The Office of Judges
found that Ms. Marstiller’s request for continued physical therapy was supported by the
treatment notes of Dr. Hamlin. Because the Office of Judges authorized Ms. Marstiller’s request
for a total right hip replacement, it concluded that all requested physical therapy was medically
related and reasonably required to treat her compensable injury. In its March 9, 2015, decision,
the Board of Review also affirmed the Office of Judges’ authorization of Ms. Marstiller’s
physical therapy requests related to her hip.
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The Office of Judges, however, determined that the requested treatment for chronic pain
was not medically related and reasonably required for Ms. Marstiller’s injury. The Office of
Judges noted that chronic pain has not been held as a compensable condition. The Office of
Judges relied on West Virginia Code of State Rules § 85-20-49.1 (2006), which states that
treatment for chronic pain is medically related and reasonably required only “if specifically
diagnosed as caused by an injury received in the course of and resulting from employment.” In
its March 9, 2015, decision, the Board of Review affirmed the Office of Judges’ denial of Ms.
Marstiller’s request for treatment of her chronic pain.
The Office of Judges determined that authorization for the right knee treatment and an
orthopedic evaluation of the right knee should be denied because they were not medically related
and reasonably required to treat her compensable conditions. The Office of Judges noted the only
compensable conditions in the claim are a lumbar sprain, pain in the hip, right labral tear of the
hip, and chondromalacia of the superior acetabular weight bearing dome. Because the knee
injury was not part of the compensable diagnosis, the Office of Judges determined that treatment
for it was not appropriate.
The Office of Judges found that medical authorization was properly denied for epidural
injections, physical therapy for the back, an office visit for radiculitis, and a lumbar MRI. The
Office of Judges noted that the only compensable diagnosis of the back was a lumbar sprain. The
Office of Judges also noted that pursuant to West Virginia Code of State Rules § 85-20-37.5
(2006), the estimated duration of care for a lumbar sprain should not exceed eight weeks. The
Office of Judges determined that Ms. Marstiller’s continued requests for low back treatment
exceeded these guidelines. In its March 9, 2015, decision, the Board of Review affirmed the
Office of Judges’ denial of Ms. Marstiller’s request for additional low back treatment.
The Office of Judges next determined that Oxycodone was not medically related and
reasonably required to treat her compensable conditions. The Office of Judges noted that
Oxycodone is a Schedule II drug. The Office of Judges found that pursuant to West Virginia
Code of State Rules § 85-20-53.14(a) (2006), Schedule II drugs should be prescribed on an
outpatient basis for no longer than two weeks after an initial injury or following a subsequent
operative procedure. The Office of Judges determined that the injury ocured on March 30, 2010,
and found that her 2012 requests for Oxycodone were clearly beyond the limitations of West
Virginia Code of State Rules § 85-20-53.14(a). The Office of Judges noted that Ms. Marstiller
underwent a right hip arthroplasty on September 21, 2012. However, the Office of Judges found
that Ms. Marstiller’s requests for Oxycodone were submitted to the claims administrator before
the date of the surgery and were not submitted in anticipation of the surgery.
The Office of Judges also determined that Hydrocodone was not medically related and
reasonably required to treat Ms. Marstiller’s compensable injuries. The Office of Judges noted
that it is a Schedule III drug and that pursuant to West Virginia Code of State Rules § 85-20­
53.14(b), Schedule III drugs should be prescribed on an outpatient basis for no longer than six
weeks after an initial injury or following a subsequent operative procedure. Because the January
13, 2014, request for the medication was made more than six weeks after Ms. Marstiller’s
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September 21, 2012, surgery, the Office of Judges determined that it was not required to treat her
injury.
The Office of Judges held that the request for Klonopin was also not medically related
and reasonably required to treat the compensable injury. Based on the report of Dr. Sauer dated
January 23, 2012, the Office of Judges found that Klonopin was being requested for Ms.
Marstiller’s anxiety. The Office of Judges found that Ms. Marstiller’s anxiety was not a
compensable condition of the claim.
The Office of Judges determined that all the requests for Valium were properly denied by
the claims administrator. The Office of Judges found that per West Virginia Code of State Rules
§ 85-20-53.14(d), Valium should not be approved for longer than six months after an initial
injury or following a subsequent operative procedure. The Office of Judges determined that Ms.
Marstiller’s 2012 request for Valium was submitted beyond the prescribed limits of West
Virginia Code of State Rules § 85-20-53.14(d). The Office of Judges also determined that Ms.
Marstiller’s 2013 requests for Valium were not medically related and reasonably required to treat
the compensable injury because Dr. Allen’s request indicated that the prescription was intended
to treat her for anxiety and depression. Because these conditions were not compensable, the
Office of Judges found that the claims administrator’s denials were appropriate.
The Office of Judges determined that the claims administrator’s denial of the medication
Ultram was proper because it is not medically related and reasonably required to treat her
compensable injuries. The Office of Judges noted that Ultram is a Schedule IV drug that,
pursuant to West Virginia Code of State Rules § 85-20-53.14(d), should not be prescribed on an
outpatient basis for longer than six months after an initial injury or following a subsequent
operative procedure. Because the medication Ultram was not requested until 2014, the Office of
Judges concluded it was proper for the claims administrator to deny it.
The Office of Judges concluded that Baclofen was not medically related and reasonably
required for Ms. Marstiller’s compensable conditions. The Office of Judges noted that, per Dr.
Allen’s December 13, 2012, report, Ms. Marstiller had stopped taking Baclofen. From that time
up to the Order of May 17, 2013, there is no indication that she started taking Baclofen again.
The evidence of record dated after May 17, 2013, fails to disclose the use of Baclofen as well as
any request that Baclofen be utilized.
The Office of Judges did however determine that Cymbalta, Neurontin, and Robaxin
were medically related and reasonably required to treat her compensable injury. The Office of
Judges found that Cymbalta and Neurontin have value for controlling pain. It also determined
that Dr. Allen’s treatment notes adequately related his request for Cymbalta and Neurontin to
Ms. Marstiller’s hip and low back pain. It found that Robaxin was a muscle relaxer and that Dr.
Allen requested authorization for the medication to help Ms. Marstiller with physical therapy.
The Office of Judges affirmed the claims administrator’s denial of the reimbursement
request on June 28, 2012, and July 3, 2012. The Office of Judges found that neither
reimbursement request should be approved because it was unclear from the evidence in the
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record if the treatments requested for reimbursement were medically related and reasonably
required to treat Ms. Marstiller’s compensable injury. The first request for reimbursement was
related to a May 30, 2012, emergency room visit, but the Office of Judges found that there was
no indication on the invoice from this visit that the treatment she received was related to one of
her compensable conditions. The second reimbursement request was for services rendered by Dr.
Allen on September 16, 2013. The claims administrator’s decision indicated that the services
were for pain in the joint, pelvic, and thigh region. The Office of Judges determined that because
Ms. Marstiller suffered from many compensable and non-compensable conditions, the
description provided under the reimbursement request was not sufficiently specific to relate the
reimbursement request to the compensable injury.
The Office of Judges finally found that Ms. Marstiller had not established that any part of
her case was extraordinary or qualified for prolonged treatment under West Virginia Code of
State Rules § 85-20-4.1 (2006). The Office of Judges noted that in light of Ms. Marstiller
suffering from non-compensable conditions for which treatment has been requested as well as a
lack of consistent drug screening, she did not establish that her case was extraordinary. The
Board of Review adopted all of the findings of the Office of Judges and affirmed its August 13,
2014, Order on March 9, 2015.
We agree with the conclusions of the Board of Review and the findings of the Office of
Judges in Appeal No. 15-0303. Ms. Marstiller has presented sufficient evidence to show that the
requested total hip replacement is medically related and reasonably required to treat her
compensable injury. Ms. Marstiller sustained compensable injuries to her hip which required
surgery. The surgery was regarded by all physicians as unsuccessful. The treatment notes of Dr.
Hamlin supported Ms. Marstiller’s request for the surgery, and the Office of Judges was within
its discretion in relying on his opinion. The Board of Review and the Office of Judges were also
justified in authorizing Ms. Marstiller’s request for physical therapy relating to her compensable
hip injury. The evidence in the record shows that therapy was needed following her right hip
arthroscopy and total hip replacement surgeries. It was appropriate for the Board of Review and
Office of Judges to grant Ms. Marstiller’s request. Because Ms. Marstiller’s ongoing hip
problems are causally related to the compensable injury, the Board of Review was correct to
affirm the Office of Judges’ Order authorizing the medications Cymbalta, Neurontin, and
Robaxin. The evidence in the record shows that these medications are sufficiently related to Ms.
Marstiller’s ongoing hip problems and are required to further her recovery.
Furthermore, the Board of Review was within its discretion in affirming the remaining
provisions of the Office of Judges’ Order, including her requests for chronic pain treatment; right
knee treatment; epidural injections; physical therapy for the low back; an office visit related to
radiculitis treatment; a lumbar MRI; and the medications Oxycodone, Hydrocodone, Valium,
Klonopin, Ultram, and Baclofen. The evidence in the record shows that the numerous treatment
requests rejected by the Office of Judges relate to Ms. Marstiller’s non-compensable conditions.
The evaluations of Dr. Mills, Dr. Jin, and Dr. Hennessey demonstrate that Ms. Marstiller has
reached her maximum degree of medical improvement with respect to her low back conditions.
The record shows that the requests for Oxycodone, Hydrocodone, Valium, and Ultram were
made outside the time limits set forth under West Virginia Code of State Rules § 85-20-53.14.
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The record further shows that the request for the medication Klonopin is related to a non­
compensable condition. The request for Baclofen was not sufficiently supported by the evidence
submitted into the record, and the Office of Judges was within its discretion in rejecting Ms.
Marstiller’s request.
Ms. Marstiller has also not submitted sufficient credible evidence to show that she is
entitled to reimbursement for the emergency room visit on May 30, 2012, and the office visit to
Dr. Allen on September 16, 2013. The records from the emergency room visit do not indicate
that it was related to a compensable condition of the claim. The treatment notes from Dr. Allen
are also not sufficiently clear to indicate that it was related to the compensable injury. Because
Ms. Marstiller has numerous compensable and non-compensable conditions, the information she
has provided about these two visits is not adequate to justify granting her request for
reimbursement.
In Appeal No. 15-0464, the Office of Judges concluded that the services rendered on
November 25, 2013, by West Virginia University Medical Corporation were not medically
related and reasonably required to treat Ms. Marstiller’s compensable injury. The Office of
Judges determined that the treatment rendered under that submitted bill related to Ms.
Marstiller’s labrum tear and chondromalacia of the superior acetabular weight bearing dome.
Because the Board of Review rejected Ms. Marstiller’s request to add right labral tear and
chondromalacia of the superior acetabular weight bearing dome as compensable conditions in its
November 5, 2014, decision, the Office of Judges found that the treatment was not related to the
compensable injury. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.
The April 22, 2015, decision of the Board of Review is based on a material misstatement
and mischaracterization of the evidentiary record. Because this Court has held Ms. Marstiller’s
claim compensable for a labral tear and chondromalacia of superior acetabular weight bearing
dome in connection with Appeal No. 14-1244, the services rendered by West Virginia University
Medical Corporation, which were related to these conditions, were medically related and
reasonably required. Ms. Marstiller is entitled to reimbursement for these services.
For the foregoing reasons, we find that the November 5, 2014, decision of the Board of
Review, insofar as it reversed the Office of Judges’ decision to hold the claim compensable for a
labral tear and chondromalacia of superior acetabular weight bearing dome, was based upon a
material misstatement and mischaracterization of the evidentiary record. The Office of Judges’
determination that these conditions were received in the course of and as a result of her
employment should not have been overturned. As a result, the Board of Review’s decision in that
regard is reversed and remanded with instructions to reinstate the Office of Judges’ May 30,
2014, Order. However, insofar as the Board of Review affirmed the remaining provisions of the
Office of Judges’ May 30, 2014, Order, the decision was not based on a clear violation of any
constitutional or statutory provision, nor is it clearly the result of an erroneous conclusion of law,
nor is it based on a material misstatement or mischaracterization of the evidentiary record.
Therefore, the remaining aspects of the Board of Review’s November 5, 2014, decision is
affirmed. We find that the March 9, 2015, decision of the Board of Review is not a clear
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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 March 9, 2015, decision of the Board of Review is affirmed.
We find that the April 22, 2015, decision of the Board of Review was based on a material
misstatement and mischaracterization of the evidentiary record. Therefore, the Board of
Review’s April 22, 2015, decision is reversed and remanded with instructions to grant Ms.
Marstiller’s request of reimbursement for the November 25, 2013, treatment from West Virginia
University Medical Corporation.
Appeal No. 14-1244 is Reversed, in part, Affirmed, in part, and Remanded.
Appeal No. 15-0303 is Affirmed.
Appeal No. 15-0464 is Reversed and Remanded.
ISSUED: March 24, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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