Appeal No. 2052540) (Claim No. 2016005856)
Hancock County Board of Education, by Jane Ann Pancake and
Jeffrey B. Brannon, its attorneys, appeals the decision of
the West Virginia Workers' Compensation Board of Review.
Lester Howell, by M. Jane Glauser, his attorney, filed a
issues on appeal are additional compensable conditions and
medical treatment. The claims administrator denied a request
for repeat thoracic epidural steroid injections on May 11,
2017. On May 18, 2017, it denied a request to add herniated
discs at T1-2 and T9-10 to the claim. The Office of Judges
reversed the May 11, 2017, decision and authorized the
injections in its January 24, 2018, Order. In its Order, it
also modified the May 18, 2017, decision to add T1-2 disc
herniation to the claim. The Order was affirmed by the Board
of Review on July 24, 2017.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Howell, a bus driver, was injured in the course of his
employment on August 26, 2015, when the bus he was driving
was rear-ended by another vehicle. Mr. Howell sought
treatment from Stephen Mascio, D.O., on August 28, 2016, and
reported left-sided back pain that was a little higher than
his prior injury. Mr. Howell suffered a lumbosacral sprain
and L5-S1 annular tear in 2014. Mr. Howell also stated that
he had numbness in the toes of his right foot. Dr. Mascio
diagnosed thoracic sprain and exacerbation of Mr.
Howell's prior lumbosacral sprain and annular disc tear
at L5-S1. Mr. Howell returned on September 10, 2015, and
stated that his back still hurt but that he had returned to
full duty work. Dr. Mascio recommended physical therapy. The
claims administrator authorized twelve physical therapy
sessions on September 22, 2015.
Employees' and Physicians' Report of Injury, Mr.
Howell indicated that his back was injured in a motor vehicle
accident. Dr. Mascio completed the physician's section
and listed the injury as lumbar and thoracic sprains. The
claim was held compensable for sprains of the thoracic and
lumbosacral spine on September 11, 2015. Mr. Howell returned
to Dr. Mascio on October 15, 2015, with continued pain and
numbness in his lower back. Physical therapy had provided no
relief and his range of motion was painful. Dr. Mascio
recommended a referral to pain management, which was approved
by the claims administrator on January 26, 2016.
Hennessey, M.D., performed an independent medical evaluation
on February 1, 2016, in which Mr. Howell reported constant
pain in his thoracic spine. He did not report lower back pain
or lower extremity symptoms at the time of the evaluation.
Dr. Hennessey found he had reached maximum medical
improvement. He stated that Mr. Howell had fully recovered
from his lumbosacral strain. For the thoracic spine, Dr.
Hennessey stated that an MRI would be reasonable and if
nothing was found, no additional treatment would be
necessary. He assessed 5% thoracic spine impairment.
thoracic MRI was performed on February 22, 2016, and showed a
small disc protrusion at T1-2 and a small protrusion or
osteophyte at T9-10. Mr. Howell also had mild degenerative
disease of the thoracic spine. On February 23, 2016, Mr.
Howell was treated by Stephanie Le, M.D., for pain
management. Physical examination showed pain, tenderness, and
restricted range of motion in the thoracic and lumbar spine.
Dr. Le noted that though Mr. Howell had preexisting lumbar
spine pain, his thoracic pain resulted from his compensable
injury. She recommended thoracic epidural steroid injections,
which Mr. Howell received twice. On August 28, 2016, he
reported that his thoracic pain had improved following the
steroid injections. The claims administrator denied a request
for further injections on April 19, 2016.
Mascio prepared a medical statement on May 18, 2016, and
requested authorization for thoracic epidural steroid
injections. He stated that the injections were medically
necessary treatment for the thoracic spine injury. Mr. Howell
continued to have pain, aching, and numbness in his thoracic
spine and had failed conservative treatment with physical
therapy and anti-inflammatories. On June 6, 2016, the claims
administrator granted thoracic epidural steroid injections
with authorized treatment dates between February 23, 2016,
and May 31, 2016.
Howell returned to Dr. Le on January 19, 2017, with constant
pain, tingling, and numbness in his back. Physical
examination showed tenderness in the thoracic paraspinal
muscles and range of motion restriction in the thoracic
spine. Dr. Le diagnosed lumbosacral ligament sprain,
backache, and degeneration of intervertebral disc of the
lumbar region. On February 16, 2017, Mr. Howell again
reported constant pain. Dr. Le recommended two thoracic
epidural steroid injections and administered the first on
February 22, 2017.
claims administrator denied Dr. Le's request for thoracic
epidural steroid injections on March 7, 2017. On April 5,
2017, Dr. Le requested that thoracic disc herniation be added
to the claim. She also requested authorization of thoracic
epidural steroid injections to treat Mr. Howell's T1-2
disc herniation since the injections had previously provided
Mascio completed a diagnosis update on April 24, 2017, in
which he requested that thoracic strain, lumbar strain,
herniated T1-2 disc, and herniated disc versus osteophyte at
T9-10 be added to the claim. He stated that the request was
based upon Mr. Howell's subjective complaints and the
February 22, 2016, MRI.
Skaredoff, M.D., performed a record review on April 26, 2017,
in which he was asked if thoracic epidural steroid injections
should be authorized. Dr. Skaredoff used the Occupational
Disability Guidelines, stating that West Virginia
workers' compensation rules provide no guidance on
epidural injections. The Occupational Disability Guidelines
stated that the primary criteria for epidural injections is
objective evidence of radiculopathy. Dr. Skaredoff found no
such evidence of radiculopathy in Mr. Howell's medical
records. He therefore recommended denying the request. The
claims administrator denied the request for thoracic epidural
steroid injections on May 11, 2017. On May 18, 2017, it also
denied a request to add herniated discs at T1-2 and T9-10 to
24, 2017, Dr. Hennessey performed an independent medical
evaluation in which Mr. Howell reported constant thoracic
spine pain. Physical examination showed some pain to
palpation at the T8 level. Dr. Hennessey found that Mr.
Howell had reached maximum medical improvement and assessed
5% thoracic spine impairment. Dr. Hennessey also opined that
Mr. Howell does not have a herniated disc at T1-2 or T9-10.