NORENA F. BUCKLAND, Claimant Below, Petitioner
WAL-MART, Employer Below, Respondent
Appeal No. 2051973) (Claim No. 2009087828)
Norena F. Buckland, by Patrick K. Maroney, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Wal-Mart, by Karin L. Weingart,
its attorney, filed a timely response.
issue on appeal is whether a referral to pain management is
medically necessary and reasonably required treatment for Ms.
Buckland's compensable injury. The claims administrator
denied the referral on May 13, 2015. The Office of Judges
affirmed the decision in its May 1, 2017, Order. The Order
was affirmed by the Board of Review on October 25, 2017. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.
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
Buckland, a door greeter, was injured in the course of her
employment on April 8, 2009, when she slipped in an icy
parking lot and hit her elbows, back, and head. The
employee's and physician's report of injury indicates
the parking lot where Ms. Buckalnd fell was covered in ice.
She hit her back and elbow and struck her head on the step of
her truck when she slipped and fell. Colin Rose, M.D.,
diagnosed disc herniation, and Ms. Buckland was taken off of
work. Ms. Buckland underwent C4-5 intracervical discectomy
and arthrodesis for her C4-5 disc herniation on August 28,
2009. On October 15, 2010, the surgery was authorized,
temporary total disability benefits were granted, and
cervical disc displacement was added to the claim.
February 23, 2011, independent medical evaluation, A.E.
Landis, M.D., diagnosed contusion/sprain type injury which
caused a C4-5 herniation for which Ms. Buckland had an
unsuccessful surgery. The lumbar spine symptoms were found to
be the result of the fall which aggravated preexisting
degenerative changes in the lumbar spine. The cervical
symptoms were opined to be directly related to the
compensable injury and the surgery that followed. Dr. Landis
found that Ms. Buckland's congenital C5-6 fusion would
have no effect on her cervical symptoms. He determined that
she had not yet reached maximum medical improvement and would
need a neurosurgical evaluation as well as chronic pain
Scott, M.D., performed an independent medical evaluation on
August 27, 2013, in which he diagnosed exacerbation of
preexisting cervical and lumbar degenerative disc disease as
well as lumbar sprain. He opined that Ms. Buckland's
current symptoms are not a result of the compensable injury.
Dr. Scott found that she had been diagnosed with fibromyalgia
and degenerative disc disease. He determined that Ms.
Buckland had reached maximum medical improvement.
December 18, 2015, independent medical evaluation, Sushil
Sethi, M.D., diagnosed cervical disc herniation and lumbar
sprain. He found that the herniated disc had been well
stabilized. Dr. Sethi noted that Ms. Buckland had aches and
pains that were the result of her congenital anomaly at C5-6,
fibromyalgia, and degenerative disease at multiple levels. He
found that the work related injury had resolved. Dr. Sethi
opined that treatment after Dr. Scott's August 27, 2013,
evaluation is not medically related or necessary for the
compensable injury. He specified that office visits,
medication, and therapy have been to treat the noncompensable
fibromyalgia and degenerative disease.
claims administrator denied a referral to pain management on
May 13, 2015, The Office of Judges affirmed the decision in
its May 1, 2017, Order. It found that a preponderance of the
evidence shows that Ms. Buckland's symptoms are not
related to the compensable injury. The Office of Judges
concluded that she has degenerative disease at multiple
levels in various parts of her body and it is more likely the
cause of her current symptoms. This was supported by the
reports of Drs. Sethi and Scott who found that Ms.
Buckland's current symptoms and treatment are the result
of noncompensable fibromyalgia. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on October 25, 2017.
review, we agree with the reasoning and conclusion of the
Office of Judges as affirmed by the Board of Review. Ms.
Buckland's compensable injury occurred nine years ago.
The evidence indicates that her current symptoms are the
result of noncompensable conditions.
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 Margaret L. Workman Justice
Robin J. Davis Justice Allen H. ...