West Virginia Department of Health and Human Resources v. Rhoda J. Hughes ( 2021 )

FILED
STATE OF WEST VIRGINIA June 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
WV DEPARTMENT OF HEALTH
AND HUMAN RESOURCES,
Employer Below, Petitioner
and
WV OFFICES OF THE INSURANCE COMMISSIONER,
Commissioner Below, Petitioner
vs.) No. 20-0213 (BOR Appeal No. 2054733)
(Claim No. 2000054175)
RHODA J. HUGHES
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner the WV Department of Health & Human Resources, by counsel Melissa M.
Stickler, appeals the decision of the West Virginia Workers’ Compensation Board of Review
(“Board of Review”). 1
The issue on appeal is medical treatment. By Order dated January 2, 2019, the claims
administrator denied an authorization request for an L2-3, L5-S1 facetectomy fixation fusion with
removal and replacement of L3-5 hardware; preoperative care; a back brace; and a lumbar bone
growth stimulator. The Workers’ Compensation Office of Judges (“Office of Judges”) modified
the claims administrator’s decision and ordered that authorization be granted for an L2-L3, L5-S1
facetectomy fixation fusion with removal and replacement of L3-L5 hardware and preoperative
care. This appeal arises from the Board of Review’s Order dated February 19, 2020, in which the
Board affirmed the Order of the Office of Judges.
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A response was not filed.
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This 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 Procedure.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions[.]
. . . . (d) If the decision of the board effectively represents a reversal of a prior ruling
of either the commission or the Office of Judges that was entered on the same issue
in the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of constitutional
or statutory provisions, is clearly the result of erroneous conclusions of law, or is
so clearly wrong based upon the evidentiary record that even when all inferences
are resolved in favor of the board's findings, reasoning and conclusions, there is
insufficient support to sustain the decision. The court may not conduct a de novo
re-weighing of the evidentiary record. . . .
See Hammons v. W. Va. Office of Ins. Comm’r, 235 W. Va. 577, 775 S.E.2d 458, 463-64 (2015).
As we previously recognized in Justice v. W. Va. Office of Insurance Comm’r, 230 W. Va. 80, 83,
736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the
context of decisions issued by the Board. See also Davies v. W. Va. Office of Ins. Comm’r, 227
W.Va. 330, 334, 708 S.E.2d 524, 528 (2011). With these standards in mind, we proceed to
determine whether the Board of Review committed error in affirming the decision of the Office of
Judges.
Ms. Hughes completed an Employees’ and Physicians’ Report of Occupational Injury or
Disease form on April 22, 2000, regarding a work-related injury that occurred on February 1, 2000.
She was injured when “she slipped and fell down wet stairs.” The claim was held compensable for
lumbosacral joint sprain on May 25, 2000. By Order dated August 16, 2005, the compensable
components of the claim were updated to include lumbar spinal stenosis, thoracic/lumbar neuritis,
lumbosacral sprain/strain, and lumbar disc displacement. Medical records indicate that Ms.
Hughes previously underwent three lumbar surgeries after her compensable injury, two at L4-L5
and a third surgery to fuse L3 through L5. Ms. Hughes has been granted a total of 21% whole
person impairment as a result of the February 1, 2000, compensable injury.
On December 1, 2009, Ms. Hughes underwent a spinal cord stimulator implant trial. The
spinal cord stimulator treatment was unsuccessful, and she continued to have low back pain
radiating into her lower extremity. On August 13, 2015, a lumbar spine x-ray showed status post
posterior decompression fixation and interbody fusion at L3 through L5 with no acute osseous
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abnormality. Ms. Hughes underwent an MRI of her lumbar spine on February 29, 2016, due to low
back pain and bilateral leg pain with left leg numbness. The MRI revealed the following:
(a) Stable postsurgical change status post laminectomy and prior interbody
fusion from L3-L5. There is no recurrent disc herniation or central or
foraminal stenosis at L3-L4 or L4-L5;
(b) Mild enlargement of a broad-based disc protrusion at L5-S1 with moderately
severe facet arthropathy and endplate spurring. There is moderate right and
moderate left foraminal narrowing at L5-S1 without central stenosis. There
is possible abutment of the right L5 nerve root;
(c) There is a small broad-based disc protrusion at L2-L3 with moderate facet
arthropathy. There is mild left foraminal narrowing without central canal
stenosis at L2-L3;
(d) There is a minimal grade 1 retrolisthesis of L2 on L3. No acute fracture.
Following her MRI, Ms. Hughes underwent an independent medical evaluation with
Richard G. Bowman II, M.D., on February 13, 2017. Dr. Bowman performed a physical
examination and noted that she was using a cane and walking with an antalgic gait. He opined that
a request for epidural steroid injections at L5-S1 would not provide long term relief given that the
injections were only six per year, and Ms. Hughes reports that in the past she had only experienced
two weeks of pain relief after each injection. Dr. Bowman further opined that her reported cervical
and left shoulder issues were not related to the February 1, 2000, injury. He did not feel that surgery
was necessary in the claim, and he stated that if any other surgery would be needed, it would likely
be surgery associated with L5 nerve compression. Dr. Bowman provided a March 1, 2017, letter
to supplement his prior report to clarify that the epidural steroid injections in question were at the
L5-S1 level and were not medically necessary since her lack of response to them in the past. He
further opined that any future structural and/or physiological problems stemming from L3-4 or L4-
5 should be construed as problems associated with unrelated degenerative changes.
On February 7, 2018, Ms. Hughes was referred to Dr. Bowman for a second opinion. She
underwent a lumbar spine MRI, which revealed:
(a) Stable MRI of the lumber spine;
(b) There are postoperative changes from laminectomy, interbody fusion, and
fixation at L3-L4, which are stable. No spinal stenosis or foraminal narrowing
at these levels. Stable grade 1 anterolisthesis at L3-4;
(c) Moderate degenerative disc disease and facet arthropathy at L2-L3. Mild
foraminal narrowing bilaterally. No spinal stenosis;
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(d) Severe facet arthroplasty at L5-L1. Moderate right foraminal narrowing is
stable.
After examination and a review of the June 7, 2018, MRI of the lumbar spine, Dr. Bowman
opined:
I reviewed her MRI and I agree that her primary problem currently is at
L5/S1. The protruding disc at that level could be protruded due to adjacent
disease or due to degenerative changes. She has not had any trauma or
specific injuries that would lead me to believe that this was a condition due
to adjacent segment disease. It is possible that the L5/S1 disc is protruded
secondary to adjacent segment disease, but it is not probable. I would say that
there is less than 50% chance that the disc is protruded secondary to adjacent
segment disease and a greater than 50% chance that it is protruded secondary
to natural degenerative changes.
The L5-S1 level is consistent with the pain that radiates down her left leg to
her foot.
A repeat spinal cord stimulator trial is not medically necessary. I render this
opinion because to my knowledge there is no definitive medical evidence that
would specifically suggest that an individual who failed a tonic trial spinal
cord stimulator has a greater than 50% chance of having a successful spinal
cord stimulator trial with sub threshold programming. While there is
significant literature to support the efficacy of sub threshold programming
there is no definitive medical evidence that would specifically suggest that
individuals who have zero relief of pain with tonic stimulation have a greater
than 50% chance of success with sub threshold programming. The limited
data that has been published has been based on small clinical series, most of
which have been retrospective data.
Ms. Hughes saw William Zerick, M.D., a neurosurgeon, on June 18, 2018, for left leg pain.
It was reported that the pain radiated through her lateral left leg to the top of her left foot. Dr.
Zerick stated that her balance has worsened over time and she was ambulating with a cane. After
reviewing the June 7, 2018, MRI, Dr. Zerick recommended an L2-L3 and L5-S1 decompression
with fixation fusion. The recommendation for the L2-L3 and L5-S1 decompression with fixation
fusion was because Ms. Hughes suffers from a decreased quality of life and residual weakness.
Based on the February 7, 2018, independent medical evaluation by Dr. Bowman, the claims
administrator issued an Order on January 2, 2019, denying authorization requested by Mount
Carmel Surgeons for L2-3, L5-S1 facetectomy fixation fusion with removal and replacement of
L3-5 hardware; back brace; pre-op CBC, CMP, UA, PT/INR, PTT, EKG; and chest x-ray with
bone growth stimulator. Ms. Hughes protested the claims administrator’s decision.
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Prasadarao B. Mukkamala, M.D., provided a Record Review report dated July 5, 2019. He
reviewed the medical reports and diagnosed a lumbar sprain; status post L4-L5 discectomy; and
status post L3-L4/L5-L5 fusion. Dr. Mukkamala disagreed with Dr. Zerick’s interpretation of the
July 7, 2018, lumbar MRI. Dr. Mukkamala stated that the MRI showed no changes from previous
MRIs, and he did not believe an L2-L3 and L5-S1 decompression with fixation fusion was
medically necessary. D. Mukkamala opined:
Furthermore, if such a fusion is indeed indicated, it was not necessary to treat the
compensable injury of 2/1/2000 . . . While the claimant may need further treatment
with relation to non-compensable age-related degenerative lumbar
spondylarthrosis, the claimant does not require any further treatment whatsoever
with relation to the compensable injury of 2/1/2000.
Dr. Mukkamala also believed that Ms. Hughes was at her maximum degree of medical
improvement.
On October 18, 2019, the Office of Judges ordered the claim administrator’s Order of
January 2, 2019, be modified to grant Ms. Hughes authorization for an L2-L3, L5-S1 facetectomy
fixation fusion with removal and replacement of L3-L5 hardware and preoperative care. It was
concluded that it had been proven by a preponderance of the evidence that the medical treatments
were reasonably required for the injury of February 1, 2000. However, the Office of Judges
determined that she has not proven that a back brace and lumbar bone growth stimulator are
reasonably required for the compensable injury. The Board of Review issued an Order dated
February 19, 2020, adopting the findings of fact and conclusions of law of the Office of Judges
and affirmed the decision.
After review, we agree with the decision of the Office of Judges, as affirmed by the Board
of Review. Dr. Zerick, a neurosurgeon, recommended surgery to treat Ms. Hughes’s ongoing
symptoms from her low back injury of February 1, 2000. The evidence of record documents an
extensive history of treatment for her condition, and the Office of Judges determined that the
request for surgery correlates with her symptoms. Therefore, the evidence supports that an L2-L3,
L5-S1 facetectomy fusion fixation with removal and replacement of L3-L5 hardware and the
preoperative care are reasonably required medical treatments for the injury received in the course
of and as a result of her employment on February 1, 2000.
Affirmed.
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ISSUED: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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