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Powley v. West Virginia University-Bor

Supreme Court of West Virginia

June 8, 2017

KEVIN POWLEY, Claimant Below, Petitioner
v.
WEST VIRGINIA UNIVERSITY- BOR, Employer Below, Respondent

         BOR Appeal No. 2051180 (Claim No. 2014010769)

          MEMORANDUM DECISION

         Petitioner Kevin Powley, by Raymond A. Hinerman, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. West Virginia University- BOR, by H. Dill Battle III, its attorney, filed a timely response.

         The issue on appeal is whether additional compensable diagnoses should be added to Mr. Powley's claim and whether Mr. Powley is entitled to a psychiatric consultation. On October 23, 2015, the claims administrator denied a request to add depressive disorder, spinal stenosis, and lumbosacral strain as compensable conditions in the claim, and denied authorization for a psychiatric consultation. The Office of Judges affirmed the decision in its March 18, 2016, Order. The Order was affirmed by the Board of Review on June 27, 2016. 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.

         Mr. Powley, a mechanic, injured his lumbar spine on September 17, 2013, when he was changing a bearing on a bus. He was seen in the emergency room at Ruby Memorial Hospital where he provided a history of L4-L5 back problems, including a burst fracture in the past. He stated he was experiencing extreme pain due to the injury. A CT scan of the lumbar spine performed on September 17, 2013, showed neuroforaminal narrowing at L4-L5 and L5-S1, which was similar to that seen on a June 16, 2011, myelogram. No acute process was identified. Mr. Powley was diagnosed with lumbar back pain. The claims administrator held the claim compensable for a lumbar sprain/strain.

         Dr. Gerbo treated Mr. Powley for the first time on September 24, 2013. He noted Mr. Powley had a history of chronic low back pain since a 2009 work injury for which he had been treated by another physician in the practice. Mr. Powley stated he was injured on September 17, 2013.when he was changing a bearing on a bus. He felt a pop in his back and had immediate pain. Mr. Powley also told Dr. Gerbo that prior to the injury his back had been acting up, so his primary care physician had ordered a lumbar spine MRI. The September 16, 2013, lumbar MRI revealed mild disc bulges at L1-L2 and L2-L3; mild disc bulge with early facet arthropathy, left greater than right, resulting in mild neural foraminal narrowing on the left at L4-L5, and early facet arthropathy with central disc protrusion and a small focus of increased signal suggestive of an annular fissure at L5-S1. Dr. Gerbo noted all of these were degenerative in nature. Dr. Gerbo diagnosed acute, intractable low back pain superimposed upon chronic low back pain.

         Stuart Burstein, M.D., performed an independent medical evaluation for the psychiatric condition on September 23, 2014. In Dr. Burstein's opinion, Mr. Powley did not have a psychiatric condition related to the work injury. There was no evidence Mr. Powley was suffering from a mental disorder as a result of the work injury. He had been prescribed Cymbalta due to depression he attributed to the anniversary of his friend's death. Dr. Burstein assessed 0% impairment. He did not recommend any mental health treatment.

         Scott Rainey, M.D., performed an independent medical evaluation on December 15, 2014.Dr. Rainey diagnosed lumbar sprain due to the September 17, 2013, work injury. He found that Mr. Powley exhibited pain out of proportion for the motions and tasks asked of him and for his participation in the examination. In Dr. Rainey's opinion, the lumbar sprain was a self-limiting condition that generally resolved in six weeks to three months.

         On August 13, 2015, Dr. Gerbo completed a Diagnosis Update listing lumbar sprain/strain as the primary diagnosis and lumbosacral sprain, depressive disorder, and stenosis of lateral recess of the lumbar spine as the secondary conditions.

         Bahar Altaha, M.D., saw Mr. Powley for depression on August 25, 2015, after his discharge from the hospital for suicidal ideation. Mr. Powley said August was a difficult time of year for him due to the death of his friend ten years ago. Dr. Altaha noted he still mourned his friend's death. Dr. Altaha diagnosed major depressive disorder due to his medical condition. He recommended Mr. Powley see an outpatient therapist.

         The claims administrator denied Dr. Gerbo's request to add depressive disorder, spinal stenosis, and lumbosacral strain as compensable diagnoses and for a referral to a psychiatric consultation on September 9, 2015.

         D. Kelly Agnew, M.D., performed an independent medical evaluation on September 30, 2015.He found that multilevel degenerative conditions pre-dated the September 17, 2013, injury. Dr. Agnew diagnosed chronic low back pain with degenerative changes seen on MRI before the work injury. He also diagnosed lumbar sprain/strain, resolved, and ongoing complaints with overwhelming non-organicity in relation to the September 17, 2013, injury.

         Mr. Powley was seen by Mark Miller, M.D., for his depression on October 9, 2015. Dr. Miller noted he was there for his Effexor, which Dr. Miller noted did not seem to have any benefit. Dr. Miller diagnosed major depressive disorder due to his medical condition. Dr. Miller stopped the Effexor and prescribed Nortriptyline. Outpatient counseling was recommended.

         On October 20, 2015, the StreetSelect Grievance Board determined the claim was compensable for a lumbar stain/sprain only and affirmed the CA's denial of Dr. Gerbo's request to add depressive disorder, spinal stenosis, and lumbosacral strain as a compensable conditions, and authorization for a psychiatric consultation. Based on that decision, the claims administrator denied Dr. Gerbo's request to add depressive disorder, spinal stenosis, and lumbosacral strain as a compensable conditions, and denied authorization for a psychiatric consultation on October 23, 2015. On November 17, 2015, Mr. Powley was seen by ...


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