KELLY E. HEAL-ORTIZ, Claimant Below, Petitioner
DRS. ORTIZ AND HEAL-ORTIZ, INC., Employer Below, Respondent
Appeal No. 2052245 Claim No. 2009072843
Kelly E. Heal-Ortiz by, Robert L. Stultz, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Drs. Oritz and Heal-Oritz,
Inc., by Timothy Huffman, its attorney, filed a timely
issue on appeal is whether Dr. Heal-Ortiz is entitled to
additional medical treatment. On April 8, 2016, the claims
administrator denied a request for medical treatment. The
Office of Judges affirmed the claims administrator in its
September 11, 2017, Order. The Order was affirmed by the
Board of Review on February 8, 2018. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
Heal-Ortiz, a dentist, sustained an injury to her upper
extremities in the course of treating patients on December
18, 2008. She was diagnosed with right carpal tunnel syndrome
and taken off work from December 18, 2008, through January 5,
2009. Dr. Heal-Ortiz's claim was originally denied by the
claims administrator, but was ruled compensable for herniated
nucleus polposus at C5-C6 and C6-C7 by the Office of Judges
on August 30, 2010.
Wahi, M.D., performed an independent medical evaluation for
the allowable diagnoses of displacement of cervical
intervertebral disc without myelopathy, sprain of unspecified
site of the wrist, and neck sprain on November 17, 2010. Dr.
Heal- Ortiz, provided a history of having pain in her
shoulder and having difficulty bending in December of 2008.
She denied having a specific injury. Dr. Wahi diagnosed wrist
pain, cervical sprain, and cervical disc displacement. He
opined that Dr. Heal-Ortiz had reached maximum medical
improvement and that she did not need any additional medical
treatment. He acknowledged she was using a home traction
device, a TENS unit, and over-the-counter medication.
Secret, M.D., became Dr. Heal-Ortiz's family physician on
January 29, 2016. Dr. Secret's medical records show Dr.
Heal-Ortiz was diagnosed with herniated discs at C5-C6 and
C6-C7. She noted Dr. Heal-Ortiz was seen for cervical spine,
right shoulder, and hand pain as well as hand numbness. Dr.
Secret recommended physical therapy, x-rays of the lumbar and
cervical spines, a cervical spine MRI, and EMG/NCS testing.
December 2, 2016, Dr. Heal-Ortiz testified via deposition
that she originally had arm and shoulder pain as well as hand
and finger numbness and eventually weakness of the arm and
hand. The treatment she had included physical therapy, home
exercises, and anti-inflammatories. She was prescribed a home
TENS unit once she was diagnosed with herniated discs. Dr.
Secret became her family physician in January of 2016, and
she recommended additional testing. Dr. Heal-Ortiz's
current symptoms included intermittent pain in her back and
shoulders, numbness, weakness, and high blood pressure. She
was still working, but she was trying to reduce her work
load. Dr. Heal-Ortiz was unsure of when the last payment for
medical treatment was made, but she thought it was in April
of 2009. She had submitted the bills to her health insurer,
but they would not pay them. Her understanding was that the
claim was compensable for her cervical spine only, not carpal
tunnel syndrome. She believes her symptoms have gotten worse
since she originally filed her claim.
claim administrator denied the request for medical treatment
on April 8, 2016, as Dr. Heal-Ortiz had not had significant
medical treatment in the last five years. The Office of
Judges affirmed the claims administrator's denial of
medical treatment on September 11, 2017. The Office of Judges
determined that there was no evidence in the record showing
Dr. Heal-Ortiz had received medical treatment in the five
years prior to treating with Dr. Secret in January of 2016.
According to West Virginia Code §23-4-16(a)(4)(2005), a
request for medical treatment must be made within five years
of significant medical treatment in order for the request to
be authorized. The Office of Judges determined that Dr.
Heal-Ortiz's last substantial medical treatment was when
she was evaluated by Dr. Wahi, in 2010. As the request for
treatment was not received within five years of Dr.
Heal-Ortiz's last substantial medical treatment, the
Office of Judges determined the claims administrator was
correct to deny her request. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on February 8, 2018.
review, we agree with the reasoning and conclusions of law of
the Office of Judges as affirmed by the Board of Review. Dr.
Heal-Ortiz sought treatment in 2008 and 2009. She received no
substantial medical treatment after 2009. The independent
medical evaluation was performed on November 17, 2010, which
was more than five years prior to her request for treatment.
Therefore, the request for medical treatment was properly
the 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 Menis E. Ketchum Justice Allen H.