Appeal No. 2050721) (Claim No. 2014034776)
James Gandee, by Patrick K. Maroney, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Toyota Motor Manufacturing WV, Inc., by
James W. Heslep, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated March 1, 2016, in which the Board affirmed a July 22,
2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's September 15, 2014, decision to
deny authorization for physical therapy. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Gandee, an assembly line worker at Toyota Motor Manufacturing
WV, Inc., injured his right shoulder at work on May 2, 2014.
Mr. Gandee underwent an MRI of the right shoulder on August
5, 2014, which revealed degenerative changes and a
subchondral cyst in the superior lateral aspect of the
humeral head. There was no evidence of a rotator cuff tear,
labral tear, or bone marrow edema. On September 2, 2014,
William McCormick, M.D., examined Mr. Gandee and suggested
that further physical therapy would improve his range of
motion. Dr. McCormick authored a request for physical therapy
due to the popping and stiffness in the right shoulder.
into evidence was a September 12, 2014, utilization review
performed by Dr. Goldsmith with Genex. Dr. Goldsmith stated
that Mr. Gandee suffered acute shoulder pain at work and
subsequently completed twenty-four physical therapy visits.
He also noted that the MRI arthrogram revealed findings of
degenerative change consistent with normal disease of life
and no evidence of rotator cuff tear or labral tear. Dr.
Goldsmith opined that the request was not medically necessary
and significantly exceeded the treatment guidelines contained
in West Virginia Code of State Rules § 85-20-40.5
(2006). Several days later, Mr. Gandee returned to Dr.
McCormick with pain in his shoulder. Dr. McCormick advised
him to work in a modified manner and attempt physical therapy
on his own.
October 1, 2014, Genex issued another review reiterating that
the request for physical therapy should be denied because Mr.
Gandee had already completed twenty-four physical therapy
sessions and there is no reason he cannot continue his
rehabilitation through an independent home regimen. The
claims administrator denied the request for further physical
therapy on September 15, 2014. Marsha Bailey, M.D., examined
Mr. Gandee and completed an independent medical evaluation
report on November 20, 2014, which found that Mr.
Gandee's likely source of symptoms was a result of his
short stature and continued over-shoulder motions as opposed
to the compensable work-related strain. Dr. Bailey stated
that due to his persistent symptoms a thoracic and cervical
spine MRI should be performed.
of the cervical spine performed on March 12, 2015, revealed
degenerative changes present with small endplate osteophytes
and disc space height loss at multiple levels. There was a
mixed hard and soft disc complex with mild disc bulge at
C4/C5 and C6/C7 without significant spinal stenosis and no
evidence of malalignment. The impression was scattered
degenerative changes in the cervical spine with some with
mild disc bulges. The thoracic MRI revealed mild, multilevel
degenerative disc desiccation within the mid to lower
thoracic spine and scattered mild, multilevel disc bulges
without significant central canal stenosis. The impression
stated no acute fracture, normal cord signal, and no
significant degenerative compromise of the spinal canal. On
March 18, 2015, Dr. Bailey reviewed the cervical and thoracic
MRI and opined that Mr. Gandee had reached maximum medical
improvement and suffered from 2% whole person impairment.
Office of Judges determined that further physical therapy was
not medically related and reasonably required for the
treatment of the compensable injury. The Office of Judges
found that under West Virginia Code of State Rules §
85-20-40.5 shoulder sprains/strains may require physical
therapy for up to six weeks. Further, West Virginia Code of
State Rules § 85-20-4.1 (2006) provides that treatment
past the treatment guidelines is presumed to be medically
unreasonable. In order for it to be shown to be reasonable:
A preponderance of evidence, including but not limited to,
detailed and documented medical findings, peer reviewed
medical studies, and the elimination of causes not directly
related to a compensable injury or disease, must be presented
to establish that treatments in excess of those provided for
in this Rule are medically reasonable.
Office of Judges determined that Dr. McCormick's request
that physical therapy be approved for the purpose of
improving Mr. Gandee's range of motion does not meet the
standard set forth in West Virginia Code of State Rules
§ 85-20-4.1. The Board of Review adopted the findings of
the Office of Judges and affirmed its Order. After review, we
agree with the consistent decisions of the Office of Judges
and Board of Review.
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
CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...