Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Roberts v. West Virginia Office of Insurance Commissioner

Supreme Court of West Virginia

May 5, 2017

MARY ANN ROBERTS, Claimant Below, Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and AFFORDABLE ELDERLY CARE PROVIDERS, INC., Employer Below, Respondent ANDMARY ANN ROBERTS, Employer Below, Petitioner
v.
MARY ROBERTS, Claimant Below, Respondent

         (BOR Appeal Nos. 2050954, 2050394) (Claim Nos. 2003001392, 2010130461)

          MEMORANDUM DECISION

         These consolidated appeals arise out of two Orders by the Workers' Compensation Board of Review concerning the entitlement of Mary Roberts to medical benefits, a reopening of her claim for additional permanent partial disability and the addition of additional conditions to her claim.[1]

         In Case Number 16-0545, Petitioner Mary Ann Roberts, by M. Jane Glauser, her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. West Virginia Office of the Insurance Commissioner, by Noah A. Barnes, its attorney, filed a timely response. The issue on appeal is whether Ms. Roberts is entitled to the additional medical treatment as well as the addition of post-laminectomy/failed back syndrome to the claim. On December 5, 2014, the claims administrator denied her petition to reopen the claim for medical treatment and denied a request to add post-laminectomy/failed back syndrome to the claim. The Office of Judges affirmed the decision in its November 2, 2015, Order. The Board of Review affirmed the Order on May 11, 2016.

         In Case Number 16-0551, Petitioner Mary Ann Roberts, by Lucinda Fluharty, its attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Mary Roberts, by M. Jane Glauser, her attorney, filed a timely response. The issue on appeal is whether Ms. Roberts is entitled to additional impairment and medical benefits. On October 28, 2013, the claims administrator decision denied reopening of the claim for additional impairment. On October 28, 2013, it denied a lumbar MRI. Finally, on October 4, 2013, the claims administrator denied a lumbar MRI, chiropractic treatment, and a referral to Samy Sakla, M.D. The Office of Judges affirmed the claims administrator's decisions in its March 27, 2015, Order. The Board of Review affirmed, in part, and reversed, in part, the Order on May 11, 2016. The Board of Review denied the reopening for additional impairment but authorized a lumbar MRI, chiropractic visits, and the referral to Dr. Sakla. 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. Roberts, a home health worker, was injured in the course of her employment on March 1, 2002. The claim was held compensable for lumbar sprain/strain and sciatica. On June 4, 2004, the claims administrator authorized a hemilaminectomy, microdiscectomy, and foraminotomy at L5-S1. The claims administrator approved a second surgery, a hemilaminectomy at L4-5, on August 4, 2005. She was also treated thereafter with lumbar spine injections. Sushil Sethi, M.D., performed an independent medical evaluation on October 14, 2005, in which he noted that Ms. Roberts had undergone lumbar surgeries. She currently complained of low back pain. Dr. Sethi opined that her current pain was due to her congenital condition of retrolisthesis. He found she had reached maximum medical improvement and recommended 13% impairment. On August 8, 2008, Dr. Sakla indicated in a treatment note that Ms. Roberts was seen for follow-up for left side low back pain. She reported that her pain had improved at least 95%. Dr. Sakla therefore recommended deferring further injections unless needed.

         Ms. Roberts suffered a second work-related lower back injury on November 17, 2009, while helping a client into the shower. Dr. Sakla noted on December 28, 2009, that Ms. Roberts presented on examination with pain for the last four weeks. She reported that she had significant relief following her first injury and was feeling 90% better from sacroiliac injections. This relief lasted until the November 17, 2009, recurrence. Ms. Roberts submitted a report of injury stating that she was injured while helping a client into the shower. The diagnosis was listed by Gerald Booth, D.C., as lumbosacral sprain/strain and it was noted that the injury aggravated a preexisting lumbar sprain/strain. An MRI taken April 27, 2010, showed minimal disc bulging from L1-L4. Three was a mild to moderate bulge at L4-5 with a radial tear along with bilateral facet hypertrophy and marked impingement. There was moderate diffuse disc bulging at L5-S1 with bilateral facet hypertrophy and moderate to severe impingement.

         On March 4, 2011, Victoria Langa, M.D., noted in a report that Ms. Roberts stated her back pain and left lower extremity numbness/tingling had worsened since the November 17, 2009, injury. The diagnoses were listed as chronic lumbar post-laminectomy/failed back syndrome, underlying age-related diffuse lumbar degenerative disc disease/degenerative joint disease, chronically symptomatic left sacroiliac joint, and diabetic peripheral neuropathy involving both feet. Dr. Langa opined that the current complaints ultimately related to the March 1, 2002, injury. It was her opinion that Ms. Roberts's symptoms were aggravated by the November 17, 2009, injury.

         In a May 11, 2011, letter, Dr. Booth requested a consultation with Dr. Sakla. On July 11, 2011, he stated that Dr. Sakla recommended left sacroiliac injections. Dr. Booth agreed with the treatment plan. Dr. Sakla's June 8, 2011, treatment notes indicate Ms. Roberts was experiencing back pain for the prior nineteen months due to a work injury sustained on November 17, 2009. He diagnosed her with lumbar sprain and sprain of the sacroiliac region. He recommended that she receive sacroiliac injections to help with the pain and requested that the claims administrator authorize the injections.

         A July 25, 2011, Office of Judges' Order affirmed a denial of a request for chiropractic treatment in the November 17, 2009, claim. It found that Ms. Roberts's pain from the 2002 injury had become much less severe approximately a year before the 2009 injury occurred. It held that she sustained a compensable injury on November 17, 2009. The claims administrator held the claim compensable for lumbar sprain and sacrum sprain.

         In an August 10, 2011, chiropractic statement, Dr. Booth stated that Ms. Roberts needs chiropractic care. He listed both the 2002 and 2009 injuries on the form but stated that it was reasonable and necessary because she suffered a sprain/strain on November 17, 2009, that was determined to be a new injury. In a diagnosis update it appears that he requested that lumbar sprain/strain and sacroiliac sprain/strain be added to both claims.

         In an independent medical evaluation on September 26, 2011, Dr. Sethi found that Ms. Roberts's sprain was self-limiting and should have resolved in six to twelve weeks. She had received sufficient treatment. He opined that her sacroiliac joint symptomatology appeared to be chronic as she was already receiving treatment in 2007. She had reached maximum medical improvement for the November 17, 2009, injury and he assessed 5% impairment. Bruce Guberman, M.D., performed an independent medical evaluation on January 5, 2012. Dr. Guberman diagnosed post-traumatic acute and chronic lumbosacral strain and L5-S1 disc disease with left sided radiculopathy. He noted that Ms. Roberts originally injured her lower back on March 1, 2003, and underwent two surgeries. Following her surgeries she did well and had no significant limitations. Following her November 17, 2009, injury she has had increased pain and decreased range of motion. Dr. Guberman found that Ms. Roberts had reached maximum medical improvement. He assessed 22% lumbar spine impairment. Ms. Roberts had previously received a 13% permanent partial disability award award which was subtracted from the range of motion impairment for a total of 9% permanent partial disability for the November 17, 2009, injury. He placed her in Lumbar Category II of West Virginia Code of State Rules § 85-20-C (2006) and adjusted the impairment to 8%.

         On January 9, 2012, the Office of Judges denied a request for sacroiliac injections in the 2002 claim because it found that Dr. Sakla opined that the injections were necessitated by the 2009 injury. In a physician review, Rebecca Thaxton, M.D., recommended denying the request for authorization of SI joint injections. She found that the treatment was for unrelated, preexisting conditions. The Office of Judges reversed a claims administrator's decision and approved authorization for SI joint injections on August 29, 2012, for the November 17, 2009, injury.

         In an October 2, 2012, independent medical evaluation, Dr. Langa noted that Ms. Roberts had reached maximum medical improvement for her November 17, 2009, lumbar/sacral/sacroiliac sprains. No additional impairment was deemed necessary. Dr. Langa disagreed with Dr. Guberman's assessment, particularly his methodology. She also disagreed with his range of motion impairment calculations as Ms. Roberts showed significantly better ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.