STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
JENNIFER JOHNS,                                                                  February 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.)   No. 16-0186 (BOR Appeal No. 2050584)
                   (Claim No. 2014008533)

THOMAS HEALTH SYSTEM, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Jennifer Johns, by Patrick K. Maroney, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Thomas Health System, Inc., by
Timothy E. Huffman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in
which the Board affirmed a June 4, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 22, 2014,
decision which found no evidence to support an indemnity claim. In its Order, the Office of
Judges also affirmed the claims administrator’s March 28, 2014, denial of a request for
neurosurgery and a pain clinic. The Office of Judges also affirmed the claims administrator’s
January 21, 2015, request for additional treatment and referral to Iraj Derkashan, M.D. The Court
has carefully reviewed the records, written arguments, and appendices contained in the briefs,
and the case is mature for consideration.

       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.

       Ms. Johns, a certified nursing assistant, was injured in the course of her employment on
September 15, 2013, when a patient fell on her neck. The record indicates the claim was held
compensable for cervical sprain/strain. The employees and physician’s report of injury indicates
Ms. Johns suffered a neck sprain after a patient fell on her. Treatment notes from Saint Francis
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Hospital emergency room indicate Ms. Johns was diagnosed with a neck sprain. A cervical CT
scan showed degenerative changes.

        Ms. Johns has a long history of cervical spine problems. August 30, 2011, treatment notes
from Boone Memorial Hospital emergency room indicate she was seen for ongoing neck pain for
eight months that had worsened in the last week. She reported numbness, redness, and burning in
her hands. On September 9, 2011, she sought treatment at Boone Memorial RHC for neck pain
and chronic back pain. She was diagnosed with cervicalgia. September 14, 2011, treatment notes
from MedExpress indicate Ms. Johns was treated for pain in the neck and arm that radiated into
the left shoulder. She reported a lifting injury involving her neck. She was diagnosed with neck
pain. She sought treatment that same day from Boone Memorial Hospital emergency room where
she was assessed with a cervical sprain.

        On September 19, 2011, Ms. Johns was treated at Boone Memorial Hospital Medical
Clinic for a lifting injury involving her neck. She stated that she was lifting a patient and had
sudden pain in her neck. She was diagnosed with cervical strain. She was treated with physical
therapy and medication. On October 5, 2011, she reported that her neck pain had increased.
Moving her neck caused numbness and pain. She was diagnosed with neck pain secondary to
cervical strain with possible nerve impingement or encroachment. On October 17, 2011, an MRI
showed bulging discs at C3-4, C5-6, and C6-7.

         A May 28, 2013, treatment note from Saint Francis Hospital emergency room indicates
Ms. Johns fell back and hit her head four days prior, injuring her neck. She reported chronic neck
pain since a motor vehicle accident three years prior. She was diagnosed with neck strain. She
sought treatment again two months later and a note from Saint Francis Hospital emergency room
indicates she had pain in her right shoulder, elbow, and leg after a fall. She was diagnosed with
lower back and cervical sprains. An employees’ and physicians’ report of injury was completed
at that time. Ms. Johns stated that she slipped and fell in a puddle in the restroom at work. She
listed injuries to her shoulder, back, spine, arm, elbow, leg, and neck. Finally, on September 10,
2013, five days before the compensable injury in this claim, Ms. Johns was treated at
MedExpress for fever, cough, congestion, pain, and neck pain. It was noted that she had a
bulging disc in her neck for three years and chronic neck pain. She was diagnosed with neck
sprain and respiratory infection.

         Ms. Johns underwent treatment at Charleston Physical Therapy Solutions from
September 25, 2013, through October 24, 2013, for the compensable injury in this claim. The
notes indicate she presented with decreased and painful cervical range of motion. The symptoms
suggested a displacement within the cervical spine referring symptoms to the left shoulder. Ms.
Johns completed six physical therapy visits and reported that she was pain free with full function
at the last visit.

        Ms. Johns regularly sought treatment at MedExpress. A note dated October 13, 2013,
indicates she was seen for pain in her neck and numbness and weakness in her extremities. The
note indicates this was an exacerbation of a chronic issue. On November 12, 2013, she was seen
for pain in her neck and back that radiated to her left leg. She reported an old injury in which she
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fractured vertebrae of the cervical spine. She stated that her pain was not severe. She was
assessed with lumbar sprain/strain, neck sprain/strain, radiculopathy of the arm, paresthesia, and
radiculopathy of the leg. On December 4, 2013, Ms. Johns was treated for neck pain. She was
diagnosed with neck sprain and instructed to return to work with no restrictions.

       On January 5, 2014, Ms. Johns sought treatment at Saint Francis Hospital emergency
food for ongoing neck pain. She noted that she turned her head to the right at work that day and
her neck just popped. X-rays of the cervical spine showed mild degenerative changes, more
prominent at C5-6, with posterior osteophyte formation. She was diagnosed with neck sprain. On
January 9, 2014, Ms. Johns was treated at MedExpress where she was diagnosed with
radiculopathy and released to return to work on modified duty on January 10, 2014.

        In a January 9, 2014, reopening application for temporary total disability benefits, the
current diagnosis was listed as cervical radiculopathy. An aggravation or progression of Ms.
Johns’s disability was reported and authorization was requested for referral to neurosurgery and
a cervical MRI. The disability period was from January 9, 2014, through March 9, 2014. A
second application was submitted on January 14, 2014, indicating Ms. Johns was temporarily
and totally disabled from January 9, 2014, through March 9, 2014, due to cervical radiculopathy.
It was also indicated that she needed a neurosurgical referral and a cervical MRI.

        A January 16, 2014, cervical MRI revealed mild degenerative changes, osteophyte disc
complex at C2-3, a small paracentral disc protrusion at C5-6, and a small annular tear at C6-7.
Rebecca Thaxton, M.D., considered the MRI in her February 3, 2014, physician review in which
she recommended the request for neurosurgery referral and a pain clinic consultation be denied.
She found Ms. Johns had exceeded West Virginia Code of State Rules § 85-20 (2006) treatment
guidelines for a cervical sprain. She had returned to work. Dr. Thaxton noted a pre-claim history
of chronic neck pain and pain clinic treatment for such. She found that the MRI showed
degenerative changes and stated that the neurosurgical appointment and pain clinic referral
would be to evaluate the symptoms caused by the degenerative disease, not the compensable
injury.

        Ms. Johns was next treated at Hope Clinic. Notes indicate she still had severe neck pain
on March 17, 2014. The assessment was C5-6 herniated disc with annular tear and spinal
stenosis. She was referred to neurology. On April 10, 2014, a return to work report from
MedExpress indicates Ms. Johns was placed on modified duty as of April 10, 2014. Her
diagnoses were listed as radiculopathy, neck pain, and cervical disc displacement. On April 14,
2014, Ms. Johns stated in a treatment note by Hope Clinic that her medications still were not
working. The assessment was degenerative disc disease, osteoarthritis, whiplash, and neck pain.
An authorization request was submitted by Hope Clinic for a referral to a neurosurgeon for
ongoing medical problems related to the September 15, 2013, work injury. A final request was
made by David Ferrell, M.D., from MedExpress, on April 29, 2014, for a neurosurgical
consultation based on Ms. Johns’s symptoms and MRI.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation of Ms.
Johns on June 12, 2014. Dr. Mukkamala noted in his evaluation that the compensable condition
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was neck sprain. His diagnosis was cervical sprain and he found that Ms. Johns was at maximum
medical improvement. He opined that she required no further treatment for the compensable
injury and assessed 8% whole person impairment.

        On October 17, 2014, Syam Stoll, M.D., performed a physician review in which he
recommended the referral to pain management with Dr. Derkashan be denied. He opined that any
further treatment, including medical, surgical, and therapy, cease immediately. He found Ms.
Johns was at maximum medical improvement and had resumed full work duties without medical
treatment for six months.

        A final independent medical evaluation was performed by Paul Bachwitt, M.D., on
December 18, 2014. Dr. Bachwitt noted the compensable condition of cervical sprain/strain,
specifically referring to a September 20, 2013, Order of the claims administrator. Dr. Bachwitt
opined the case was properly closed for temporary total disability benefits. He noted that most of
Ms. Johns’s symptoms were related to old arthritic changes and a motor vehicle accident she was
in at age nineteen. He opined that her simple cervical sprain was superimposed on pre-existing
degenerative changes which should have resolved within two to three months. He further opined
that it was appropriate to deny the request for a pain clinic and neurosurgical referral. He found
that she had no particular areas of tenderness or findings that could be treated by a pain clinic nor
did she have any clinical findings of an operative disc lesion that would need neurosurgical
treatment. He assessed 8% impairment.

        On March 28, 2015, the claims administrator denied a request for neurosurgery and a
pain clinic visit. On September 22, 2014, it found no evidence to support an indemnity claim. On
January 21, 2015, the claims administrator denied a request for recommendations for additional
treatment and referral to Dr. Derkashan. The Office of Judges affirmed the claims
administrator’s decisions on June 4, 2015.

         The Office of Judges found that the claim was never closed for temporary total disability
benefits and therefore, Ms. Johns was not required to show a progression or aggravation of her
condition. The issue at hand was therefore whether she was entitled to temporary total disability
benefits. The Office of Judges stated that the request for temporary total disability was based
upon the claim reopening application dated January 14, 2014. In response, the claims
administrator issued a letter dated February 21, 2014, stating the claim had never been closed for
temporary total disability benefits. Seven months later, it issued the September 22, 2014,
corrected Order stating that the claim was never closed and that there was no evidence to support
a lost/indemnity claim. This Order is in litigation in this case.

        The Office of Judges determined that no Orders or decisions were submitted indicating
the compensable condition in the claim. However, the report of Dr. Bachwitt listed the
compensable condition as cervical sprain/strain, referring specifically to a claims administrator
decision holding the condition compensable. Further, judicial notice was given to a May 19,
2015, Office of Judges Order which found that the only compensable condition in the claim was
cervical sprain/strain. The Office of Judges determined that the evidence of record does not
establish that Ms. Johns is unable to work due to her compensable injury. The reopening
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application for temporary total disability benefits indicated the disability was due to cervical
radiculopathy, a non-compensable condition. A treatment note from MedExpress dated April 10,
2014, indicated her restrictions were due to radiculopathy, neck pain, and cervical disc
displacement, all non-compensable conditions. The Office of Judges found that Dr. Burke
authored a report on April 14, 2014, stating he believed that Ms. Johns’s ongoing problems were
related to the compensable injury. However, his assessment of her condition included the
diagnoses of degenerative disc disease and osteoarthritis, non-compensable conditions.
Furthermore, the Office of Judges determined the request for temporary total disability coincides
with an intervening injury sustained on January 5, 2014. Treatment notes from St. Francis
Hospital indicate Ms. Johns was at work when she turned her head and her neck popped. Based
upon the evidence, the Office of Judges concluded that she was not entitled to temporary total
disability benefits.

        The Office of Judges next turned to the March 28, 2014, claims administrator decision
denying authorization for a neurological consultation and pain clinic referral and the January 21,
2015, denial of additional treatment and referral to Dr. Derkashan. The Office of Judges
determined that the estimated duration of care for a sprain/strain is eight weeks per West
Virginia Code of State Rules § 85-20-35.5 (2006). The requests for treatment were made four
and thirteen months after the injury, respectively. The treatment exceeds the guidelines and the
Office of Judges found that Ms. Johns has not established an extraordinary case that would allow
for additional treatment outside the guidelines per West Virginia Code of State Rules § 85-20-4.1
(2006). The Office of Judges further determined that she failed to establish that the treatment was
necessary for a compensable injury. The requested neurosurgical consultation and pain clinic
referral were based upon the diagnosis of radiculopathy, a non-compensable condition. Dr.
Ferrell, of MedExpress, requested a neurosurgery consultation on April 29, 2014, based on Ms.
Johns’s symptoms and the MRI report. The MRI showed degenerative changes, a disc
protrusion, and an annular tear. None of the conditions are compensable.

        The Office of Judges further determined that the request for additional treatment and
referral to Dr. Derkashan was made for the diagnosis of neck pain. Though neck pain is a
symptom, not a diagnosis, the Office of Judges found that it was unrelated to the compensable
injury. It determined that Ms. Johns’s existing pain was likely the result of her pre-existing
conditions. The Office of Judges stated that its findings were supported by the reports of Dr.
Mukkamala, Dr. Bachwitt, and Dr. Thaxton who all determined that she required no further
treatment for her compensable sprain/strain. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on February 3, 2016.

        After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Ms. Johns requested medical benefits and temporary total disability benefits
for conditions that have not been held compensable in this claim. She had serious pre-existing
degenerative changes and cervical spine conditions that are not related to the compensable
injury. She sustained a simple cervical sprain/strain as a result of her compensable injury, which
should have resolved long ago.


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        For 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 affirmed.



                                                                                        Affirmed.

ISSUED: February 3, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker

DISSENTING:
Justice Menis E. Ketchum




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