Appeal No. 2051066) (Claim No. 2011027115)
Luther Lilly, by Reginald D. Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Bruce Allen, Inc., by Steven K. Wellman, its
attorney, filed a timely response.
issue on appeal in this case is whether an anterior/posterior
lumbar fusion at L4-5 and L5-S1 should be authorized. On
January 31, 2015, the claims administrator denied a request
for authorization of an anterior/posterior lumbar fusion at
L4-5 and L5-S1. The Office of Judges affirmed the decision on
January 27, 2016. On June 7, 2016, the Board of Review
affirmed the Office of Judges' Order.
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
Lilly, a heavy equipment operator, was injured on January 25,
2011, while repetitively bending, twisting, and lifting bags
of concrete. The claim was held compensable for a lumbar
sprain/strain, herniated disc, and radiculopathy. Mr. Lilly
was treated by Matthew Walker, M.D., on April 6, 2011. Dr.
Walker conducted a physical examination and reviewed
diagnostic testing which showed degenerative disc disease,
most significant at L4-5 and L5-S1. He recommended that Mr.
Lilly continue physical therapy and stop smoking.
Bailey, M.D., performed an independent medical evaluation on
February 14, 2012. Mr. Lilly reported constant pain in the
upper lumbar spine radiating into the lower lumbar spine,
buttocks, thighs, calves, and feet. Dr. Bailey opined that he
suffered from chronic low back pain without true
radiculopathy. She found that his expectations following
surgery were unrealistic. Mr. Lilly indicated he was
interested in seeing Dr. Walker's partner, John Schmidt,
M.D., and stated that if Dr. Schmidt would not perform the
operation, he would find someone who would. Dr. Bailey noted
that he had unrealistic expectations for the surgery. Dr.
Bailey suggested that he return to Dr. Walker for
reevaluation. If he did not undergo back surgery, she found
that an 8% impairment rating was appropriate, representing 4%
for degenerative disc disease and 4% for the compensable
treatment note by Dr. Walker dated October 11, 2012,
indicates that Mr. Lilly was seen three months post left L4-5
microdiscectomy. He still had significant lower back pain and
no significant improvement of his leg pain. An MRI taken on
October 3, 2012, showed degenerative disc disease at L4-5 and
L5-S1. Dr. Walker diagnosed spondylosis and recommended that
Mr. Lilly see Andrew Thymius, D.O., a pain medicine
December 6, 2012, Dr. Bailey performed a second independent
medical evaluation. She diagnosed chronic low back pain with
left radiculopathy. She described Mr. Lilly as highly pain
focused. She disagreed with Dr. Thymius's recommendation
of additional surgery. She found that he had reached maximum
medical improvement. She opined that Mr. Lilly's present
complaints were related to the compensable injury. Though he
had mild, preexisting degenerative changes of the lumbar
spine, it did not account for the majority of his ongoing
symptoms. She recommended 10% whole person impairment.
letter to the claims administrator, Dr. Walker indicated that
he saw Mr. Lilly that day and he still had significant pain.
Mr. Lilly disagreed with Dr. Bailey's assessment of
maximum medical improvement. Dr. Walker opined that there was
a 60% chance that a lumbar fusion would improve Mr.
Lilly's pain and requested approval for a second opinion.
In a treatment note on December 10, 2013, Dr. Walker stated
that Mr. Lilly had gotten a second opinion from Sandy Emery,
M.D., who did not see Mr. Lilly in person but did review the
diagnostics studies. Dr. Emery did not recommend the fusion.
On October 4, 2013, an MRI showed degenerative changes at
L4-5 and L5-S1 without herniation. Dr. Walker stated that
though he and Mr. Lilly had discussed fusion previously, he
now believed that surgery would not be helpful.
August 26, 2014, Dr. Thymius recommended a lumbar discography
to see if the painful disc could be identified for possible
spinal fusion. The results showed that the pain was coming
from the L4-5 and L5-S1 discs. Mr. Lilly was then treated by
Rajesh Patel, M.D., on October 27, 2014. Dr. Patel noted that
Mr. Lilly had previously undergone a discectomy without much
improvement of his pain. Dr. Patel diagnosed annular tears at
L4-5 and L5-S1, lumbar radiculitis, lumbago, discogenic back
pain, and lumbar post-laminectomy syndrome. He recommended a
fusion and opined that there was a two out of three
probability of improvement.
Landis, M.D., disagreed with a L4-5 and L5-S1 fusion in a
November 18, 2014, independent medical evaluation. He stated
that the procedure was highly unlikely to be of benefit to
Mr. Lilly given his prior response to conservative treatment.
The recovery would take a year and would not allow him to
return to any gainful employment. Dr. Landis recommended a
back brace and a trial spinal cord stimulator.
Mir, M.D., performed an independent medical evaluation on
October 26, 2015, in which he diagnosed status post
microdiscectomy, early minimal degenerative changes at L4-5
and L5-S1, and post-surgical changes causing irritation of
the left L5 nerve root. He opined that Mr. Lilly's
symptoms were mostly related to the compensable injury. Dr.
Mir stated that he saw no indication for a fusion at L4-5 and
L5-S1. He stated that there was very minimal evidence of
degenerative discs and opined that surgery would not help Mr.
claims administrator denied a request for authorization of an
anterior/posterior lumbar fusion at L4-5 and L5-S1 on January
31, 2015. The Office of Judges affirmed the decision in its
January 27, 2016, Order. It found that Drs. Walker, Patel,
Landis, and MRI are all orthopedic surgeons while Drs. Bailey
and Thymius are not. Drs. Mir, Landis, and Patel treated Mr.
Lilly on one occasion, whereas Dr. Walker saw him multiple
times. After reviewing the most recent diagnostic testing and
having seen Mr. Lilly on numerous occasions, Dr. Walker
recommended against surgery. His opinion was supported by the
reports of Drs. Landis and Mir. Dr. Patel, who recommended
surgery, was only supported by Dr. Thymius, who acted as Mr.
Lilly's pain management physician. In the absence of a
second orthopedic surgeon supporting Dr. Patel's
recommendation for surgery, the Office of Judges concluded
that a preponderance of the evidence supported the claims
administrator's denial of the surgery. The Board of
Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on June 7, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. A
preponderance of the medical evidence indicates that Mr.
Lilly would not benefit from the requested surgery. Multiple
independent medical evaluations and the treatment notes of
Dr. Walker support this conclusion. The only evidence in
favor of surgery was the opinions of Dr. Patel and Dr.
Thymius. The Office of ...