Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hancock County Board of Education v. Howell

Supreme Court of Appeals of West Virginia

September 13, 2019

HANCOCK COUNTY BOARD OF EDUCATION, Employer Below, Petitioner
v.
LESTER HOWELL, Claimant Below, Respondent

          (BOR Appeal No. 2052540) (Claim No. 2016005856)

          MEMORANDUM DECISION

         Petitioner 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 timely response.

         The 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.

         The 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 Procedure.

         Mr. 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.

         In the 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.

         Bill 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.

         A 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.

         Dr. 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.

         Mr. 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.

         The 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 symptom relief.

         Dr. 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.

         Michael 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 the claim.

         On July 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.