BLANCHE K. STUTLER, Claimant Below, Petitioner
WEST VIRGINIA UNITED HEALTH SYSTEMS, Employer Below, Respondent
Appeal No. 2051035) (Claim No. 2013017267)
Blanche K. Stutler, pro se, appeals the decision of the West
Virginia Workers' Compensation Board of Review. West
Virginia United Health Systems, by James W. Heslep, its
attorney, filed a timely response.
issue on appeal is whether additional medical benefits should
be authorized in the claim. This appeal originated from the
July 21, 2015, claims administrator's decision denying
the request for a referral to Russell Biundo, M.D., and
bilateral lumbar transformainal epidural steroid injections
at L2-S1. In its December 9, 2015, Order, the Workers'
Compensation Office of Judges affirmed the decision. The
Board of Review's Final Order dated March 24, 2016,
affirmed the Order of the Office of Judges. 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 that the Board of Review's decision is
based upon a material misstatement or mischaracterization of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Stutler, a food service worker, was injured in the course of
her employment on December 17, 2012, when she tripped over a
telephone wire behind the counter where she worked. She was
taken to the emergency room at United Hospital Center and
underwent diagnostic testing for her wrist, knee, and
thoracic and lumbosacral spines. Ms. Stutler subsequently
filed a claim for benefits in which the physician's
section listed the diagnoses as unspecified backache,
contusion of the right knee, left wrist contusion, and sprain
of muscle. The claims administrator held the claim
compensable for right knee, left wrist contusion, and muscle
sprains on January 8, 2013.
Stutler has a history of pre-existing conditions in her
spine. Diagnostic testing performed on April 8, 2005,
revealed advanced degenerative disc changes at L5-S1 with a
disc protrusion at L4-5 and disc bulges at L2-3 and L3-4. At
that time, she was prescribed Lortab for her low back pain.
X-rays taken on the date of injury revealed mild sclerosis
involving the superior endplate of L2 without height loss.
Additionally, mild bilateral facet degenerative changes
involving the lower lumbar levels were noted.
the injury, Ms. Stutler continued to suffer pain in her low
and mid back. On July 26, 2013, the claims administrator
authorized a pain management consultation for low back pain.
Ms. Stutler presented to Darya Beheshtin, M.D. Dr. Beheshtin
noted that Ms. Stutler was experiencing low back pain and
muscle spasms in her back close to her bra line. Ms. Stutler
also began seeing Koshy Mathai, M.D., regarding her
compensable injury. On August 16, 2013, Dr. Mathai noted that
Ms. Stutler had been referred to his office for mid and low
back pain she had experienced since her December 17, 2012,
injury. Dr. Mathai diagnosed Ms. Stutler as suffering from
low back pain, left lumbosacral radicular pain syndrome,
lumbar disc disease, lumbar facet arthropathy, and chronic
pain syndrome. He indicated that he would schedule Ms.
Stutler for a lumbar epidural steroid injection. Regarding
her mid back pain, Dr. Mathai indicated he would consider
referring her for an MRI of the thoracic spine.
August 26, 2013, United Health Center Orthopedics completed a
diagnosis update requesting that thoracic back pain be added
as a compensable component of the claim. The claims
administrator did not respond to this request for over two
years, which has caused some of the confusion regarding this
claim. However, the claims administrator did respond to Dr.
Mathai's request for a lumbar epidural steroid injection.
On September 11, 2013, the claims administrator authorized
lumbar epidural steroid injections from September 6, 2013,
through October 30, 2013. The injections were authorized
again from December 19, 2013, through January 30, 2014.
Stutler continued seeing Dr. Mathai for low and mid back
pain. On several occasions, Dr. Mathai requested additional
epidural steroid injections which were denied by the claims
administrator in 2014. The reasons given for the denial were
that it was not recommended to treat a lumbar sprain/strain
and that a previous independent medical evaluation  report had
placed Ms. Stutler at maximum medical improvement and
suggested that no further treatment was required. On July 10,
2014, she saw Dr. Mathai and indicated that her low back pain
had increased. His assessment listed thoracic back pain first
and low back pain second. Dr. Mathai indicated that he would
request bilateral lumbar transforaminal steroid injections
along with a referral to Dr. Biundo for further evaluation
and management of her current symptoms. Dr. Mathai indicated
that his request for injections had been denied even though
he had shown there was medical evidence of its necessity and
thus did not understand the denials. He expressed his
confusion again at subsequent appointments with Ms. Stutler
dated November 3, 2014; January 27, 2015; and April 30, 2015.
At the April 30, 2015, appointment, Dr. Mathai noted that
Workers' Compensation should address whether the thoracic
spine should be treated. He reiterated his desire to proceed
with the injections and the referral to Dr. Biundo and stated
he did not understand why the referral was being denied as he
had provided a very lengthy description of why the treatment
was reasonable as per a July 10, 2014, office visit.
21, 2015, the claims administrator denied the request for a
referral to Dr. Biundo and the authorization of the bilateral
transforaminal steroid injections. The reasoning for the
denial remained the same, indicating that the independent
medical evaluation showed Ms. Stutler no longer required
November 12, 2015, Ms. Stutler testified at an expedited
hearing before the Office of Judges. She asserted that she
had not reached maximum medical improvement and deserved to
benefit from further treatment. Ms. Stutler noted that the
requests of Dr. Mathai were aimed at treating her low and mid
back pain which were a result of her compensable injury.
Counsel for the employer noted that the thoracic spine had
never been added as a compensable component of the claim. The
employer argued that the requested treatment was aimed at
treating either non-compensable conditions or pre-existing
conditions. Ms. Stutler rebutted that she had tried to have
thoracic back pain added to the claim via a diagnosis update
from August 26, 2013, but a claims administrator had not
December 9, 2015, the Office of Judges affirmed the July 21,
2015, claims administrator's decision denying the
epidural steroid injections and the referral to Dr. Biundo.
The Office of Judges began by noting that the compensable
conditions in this case are confusing due to the failures of
the claims administrator and the initial treating physician.
While low back sprain/strain was never listed as a
compensable condition, there appears to be a general
acceptance by the parties that it was compensable for this
diagnosis. Regarding the thoracic spine, Ms. Stutler
submitted a request to have it added to the claim but the
claims administrator had never responded, which caused
confusion in the course of treatment. The Office of Judges
found Dr. Mathai's requests for the epidural steroid
injections to be unclear as he never specifically attributed
the need for treatment to her compensable injury. With Ms.
Stutler's extensive pre-existing conditions, the Office
of Judges found that absent more information from Dr. Mathai,
it was most likely the treatment was related to the
pre-existing conditions. The Office of Judges noted that more
information would have been helpful in regard to the referral
to Dr. Biundo as well. It found that Dr. Mathai did not state
in specific terms why the referral was reasonable, necessary,
and related to the compensable injury. While the Office of
Judges noted that the claims administrator was partly to
blame, it ultimately held that Ms. Stutler failed to meet her
burden of proof. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and
affirmed its Order on March 24, 2016.
disagree with the reasoning and conclusions reached by the
Office of Judges and affirmed by the Board of Review.
Following the filing of this appeal, the Board of Review
rendered a decision on August 8, 2016, in which it reversed a
claims administrator's decision and an Office of
Judges' Order denying a request to add the thoracic spine
to the claim. In the decision, the Board of Review noted that
the Office of Judges' Order was wrong in view of the
reliable, probative, and substantial evidence on the whole
record. It noted that Ms. Stutler's complaints of
thoracic pain following the compensable injury had been
documented several times. She was prescribed medicine for
lumbar/thoracic pain in 2013. Dr. Beheshtin noted that she
had low back pain and muscle spasms in the thoracic region.
Additionally, Dr. Mathai noted that she began experiencing
mid and low back pain after the December 17, 2012, injury. A
diagnosis update by Joseph Fazalare, M.D., requested that the
thoracic spine be added to the claim and attributed it to the
compensable injury. In light of the evidence, the Board of
Review concluded Ms. Stutler suffered a thoracic back injury
in the course of and resulting from her employment.
the reasoning of the Board of Review in its August 8, 2016,
decision, the referral to Dr. Biundo and the requests for
lumbar transforaminal epidural steroid injections are
reasonably related and medically necessary to treat the
compensable injury. The Board of Review has indicated that
the thoracic spine is now a compensable component of the
claim. Dr. Mathai requested the referral to Dr. Biundo on
July 10, 2014, based on Ms. Stutler's current
presentation. In his notes, Dr. Mathai included thoracic back
pain and low back pain as the primary and secondary
diagnoses, respectively. Dr. Mathai also repeatedly expressed
his confusion as to why his requests were being denied in
light of his explanations as to why the treatment was
necessary. A large portion of the argument made by the
employer and the reasoning of the Office of Judges'
December 9, 2015, Order rely on the belief that the thoracic
spine is not compensable. That is no longer the case. In
reviewing the medical evidence of record, it is clear that
Ms. Stutler experienced thoracic and lumbar pain following
the compensable ...