Appeal Nos. 2050954, 2050394) (Claim Nos. 2003001392,
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.
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.
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
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
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
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
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,
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
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.
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
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%.
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.
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