JUDITH E. COLEMAN, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and BLUE RIDGE FUNERAL HOME, INC., Employer Below, Respondent
Appeal No. 2051315 (Claim No. 900044242)
Judith E. Coleman, pro se, 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.
issue on appeal is moot because Ms. Coleman seeks
authorization of medications that have already been approved.
The claims administrator issued a June 3, 2015, decision
which approved Cymbalta, Seroquel XR, and Valium for sixty
days. The same decision denied further treatment beyond the
initial sixty days because there was not a causal connection
between the compensable injury and the need for the
medications. The claims administrator then issued a December
3, 2015, decision that authorized the requested medications
and did not state that the medications would be terminated.
The Office of Judges affirmed the claims administrator's
decision on May 12, 2016. Additionally, the Office of Judges
dismissed the claims administrator's June 3, 2015,
decision as moot. The Board of Review affirmed the Order of
the Office of Judges on August 17, 2016. 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
Coleman, an employee for Blue Ridge Funeral Home, Inc.,
injured her back while attempting to lift a casket at work on
January, 30, 1990. Her claim was held compensable for a lower
back injury. Ms. Coleman subsequently developed sharp low
back pain that radiated to the left leg. Harold Fleschner,
M.D., initially diagnosed Ms. Coleman with acute lumbar,
sacral and sacroiliac sprains; involuntary muscle spasms; and
nerve root compression. Dr. Fleschner treated Ms. Coleman for
several years after the compensable injury, and during that
time she had several lumbar aggravations. He saw no evidence
of intervening injuries. Dr. Fleschner testified on March 16,
1995, that an MRI taken of Ms. Coleman's lumbar spine on
April 8, 1994, revealed a herniated disc at L5-S1. Dr.
Fleschner stated that Ms. Coleman's impairment would be
progressive, and he discussed surgery with her.
management letter dated October 24, 1996, stated that Ms.
Coleman underwent a lumbar laminectomy and multiple epidural
steroid injections after the compensable injury. Ms. Coleman
rated her pain at an eight on the pain scale. The healthcare
provider indicates Ms. Coleman had "chronic pain
problems with a situational depression directly related to
the pain itself. The patient does have an L5 nerve root
deficit in the right leg for which there is ongoing continued
workup." Lastly, the letter states that Ms. Coleman had
permanent impairment from the compensable injury and that she
was probably at maximum medical improvement. Ms. Coleman was
seen by Wassim Saikali, M.D., with nausea, vomiting,
shortness of breath, and generalized weakness on June 11,
1999. Ms. Coleman had chronic pain and reported multiple
joint pains involving the knees, hands, and back. According
to Dr. Saikali, Ms. Coleman looked depressed, and she had
"footdrop with significant decrease in dorsiflexion in
the right foot. She reports this after surgery to her
back." Dr. Saikali examined Ms. Coleman and diagnosed
possible fibromyalgia, mild generalized osteoarthritis,
chronic pain syndrome, and foot drop. Dr. Saikali suggested
Ms. Coleman needed aggressive treatment for depression.
September 11, 2000, Ms. Coleman saw Dr. Saikali with severe
depression. She was despondent and crying. Dr. Saikali
examined Ms. Coleman and stated she had severe refractory
fibromyalgia and chronic pain syndrome. "The patient has
failed all interventions. She does not feel she can function
because of her persistent symptomology and pain." At
that time, Dr. Saikali believed that she was totally disabled
until her depression was under control. On September 29,
2003, the claims administrator granted authorization for
twelve psychiatric counseling sessions with Khalid Hasan,
M.D. During her treatment in 2008, Ms. Coleman was seen at
the Chestnut Ridge Comprehensive Behavioral Healthcare Center
for a psychiatric evaluation. The author of the evaluation is
unknown because only part of the report was submitted. The
report states the claimant suffered from chronic pain and
depression. According to the report, Ms. Coleman underwent
back surgery in December of 1994. However, following the
"surgery, she noticed foot drop and had a great decrease
in her ability to function. Since her back surgery, she has
had treatment with physical therapy, pain clinics,
injections, and a TENS unit with little to no benefit. Around
the time of the interview, her physical symptoms were worse
and she was beginning to have pain in her legs, as well as
her back and hips." The report states that after her
1994 surgery the claimant met the criteria for mild major
depressive disorder of a single episode. Ms. Coleman
exhibited a depressed mood, decreased energy, decreased
interests, passive suicidal ideations, hopelessness, and
feelings of worthlessness. According to the report, Ms.
Coleman isolated herself from others. A report dated the
following day reiterated the issues and assessed 5% whole
person impairment. According to the report, 1% of that 5% was
due to non-work-related issues.
2009, Ms. Coleman underwent an independent medical
evaluation, from Cheryl Hill, M.D., which suggested that 70%
of her depression was work related. On June 3, 2015, the
claims administrator denied approved the medications
Cymbalta, Seroquel XR, and Valium but stated that they would
only be approved for a sixty day period. The claims
administrator also stated that the medications would not be
continued past the sixty day period because no evidence
showed the medications were needed due to a compensable
condition. However, a December 3, 2015, claims administrator
decision did not deny any future medications and approved the
requested medications of Cymbalta, Seroquel XR, and Valium.
For reasons unknown, Ms. Coleman appealed her approval for
the medications to the Office of Judges.
Office of Judges found that the December 3, 2015, claims
administrator decision superseded the June 3, 2015, decision.
Therefore, Ms. Coleman would receive the requested
medications without limitations. The Board of Review adopted
the findings of the Office of Judges and affirmed its Order.
Ms. Coleman appealed to this Court seeking that her
medications be approved. Because her medications have been
approved as requested, there is no issue in dispute and
therefore the case is moot.
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED IN BY:Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...