CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that the injections sought by a man for his injury are medically necessary and should be allowed.

The court has considered the parties’ briefs and the record on appeal, according to a memorandum decision filed Feb. 4 by the West Virginia Supreme Court of Appeals.

“The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument,” the decision states.

Upon consideration of the standard of review, the briefs and the record presented, the court finds that the Board of Review’s decision is in clear violation of a statutory provision. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.

Chief Justice Menis E. Ketchum and Justices Robin Jean Davis and Margaret L. Workman concurred in the memorandum decision. Justices Brent D. Benjamin and Allen H. Loughry II dissented, and Loughry authored a dissent.

“This appeal arises from the Board of Review’s Final Order dated January 20, 2015, in which the Board affirmed a September 30, 2014, Order of the Workers’ Compensation Office of Judges,” the decision states.

In its order, the Office of Judges affirmed the claims administrator’s April 30, 2014, decision denying Danny J. Smith’s request for authorization of two caudal epidural injections and two lumbar facet joint injections.

Smith injured his left knee in the course of his employment on Feb. 12, 1986, when he stepped on a rock and twisted his knee. Smith is not requesting authorization for two caudal epidural injections and two lumbar facet joint injections.

“In his report detailing the results of his August 19, 2013, evaluation of Mr. Smith, Saghir Mir, M.D., opined that Mr. Smith does not require epidural or facet injections in relation to the February 12, 1986, injury,” the decision states. “Dr. Mir further opined that there is no clinical evidence of radiculopathy to justify the use of epidural injections.”

Finally, Mir opined that facet injections are not required in relation to the treatment of the Feb. 12, 1986, injury because the majority of Smith’s facet joint changes are generalized and are unrelated to the injury.

On April 30, 2014, the claims administrator denied Smith’s request for authorization of two epidural caudal injections and two lumbar facet injections and in its order affirming the claims administrator’s decision, the Office of Judges held that Smith has failed to prove by a preponderance of the evidence that the requested injections constitute medically related and reasonably required treatment in relation to the 1986 injury.

The Board of Review affirmed the reasoning and conclusions of the Office of Judges in its Jan. 20, 2015, decision.

“After reviewing the record, we find that the decision of the Office of Judges, which was affirmed by the Board of Review, is in clear violation of a statutory provision,” the decision states. “Dr. Mir’s report clearly indicates that the lower back has been added as a compensable body part in the instant claim. His report further indicates that Mr. Smith may have received authorization for some forms of treatment relating to the lower back.”

Although the evidentiary record currently before the Office of Judges offers no definitive information regarding the compensability of the lower back, given the fact that Mir’s report indicates that the lower back has been added as a compensable body part and the fact that Smith is a pro se claimant, the Office of Judges should have taken further action in order to discover which diagnosis or diagnoses regarding the lower back have been added as compensable components of the claim.

The majority found that the decision of the Board of Review was in clear violation of a statutory provision.

“Therefore, the decision of the Board of Review is reversed and the claim is remanded to the Office of Judges with instructions to reconsider Mr. Smith’s request for authorization of two caudal epidural injections and two lumbar facet injections in light of the provisions of West Virginia Code of State Rules § 93-1-6.8,” the decision states.

In his dissent, Loughry stated that Smith failed to submit any evidence in support of his protest from the April 30, 2014, claims administrator’s decision of the Office of Judges.

“In that regard, Mr. Smith has failed to establish that the requested injections are medically necessary and reasonably required for the ongoing treatment of conditions arising as a result of the February 12, 1986, left knee injury,” Loughry’s dissent states.

Loughry stated that the only medical evidence of record indicates that the requested injections are not required for the treatment of the injury and that the claims administrator, Office of Judges and the Board of Review all correctly concluded that Smith failed to establish that the requested injections constitute medically related and reasonably required treatment in relation to the 1986 injury.

W.Va. Supreme Court of Appeals case number: 15-0103

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