CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the workers' compensation board of review was wrong in denying reimbursement payments to a woman who was injured due to poor ventilation at her workplace.



In the appeal, Jennifer Moore challenged the validity of a regulation as it denied reimbursement for medically necessary intravenous chelation therapy when the therapy is performed in a physician’s office, according to an opinion filed Feb. 5.


Chief Justice Margaret Workman authored the opinion. Justice Brent Benjamin dissented and reserved the right to file a dissenting opinion.


The court concluded the portion of the regulation challenged is unreasonable and inconsistent with the Workers’ Compensation Act and invalidated it.


"We reverse the order of the Workers’ Compensation Board of Review ... and remand this matter for entry of an order directing that petitioner’s reasonable expenses for medically necessary chelation therapy be reimbursed," the opinion states.


Moore was employed by K-Mart for more than 30 years and worked in a small room with poor ventilation and was exposed to furniture dust and metal dust. She was diagnosed with peripheral neuropathy due  to toxic exposure to heavy metal at the workplace.


Moore filed a claim for workers' compensation and the claim was ruled compensable. In 2008, she began receiving intravenous chelation therapy and her symptoms improved.


On Aug. 29, 2012, the review board denied Moore's request for reimbursement of medical expenses, which Moore appealed.


The court concluded that it is unreasonable to deny reimbursement for medically necessary chelation therapy to treat heavy metal toxicity simply because the therapy was performed in a physician’s office.


"Petitioner suffers from peripheral neuropathy due to toxic exposure to heavy metals at the workplace," the opinion states. "She is entitled to receive reasonable and necessary medical  benefits to treat this compensable condition whether she receives such treatment in her physician’s office or elsewhere."


The court ruled that the Aug. 29, 2012 order of the Board of Review be reversed and for the entry of an order directing that Moore's reasonable expenses for medically necessary chelation therapy by reimbursed.


Moore was represented by George Zivkovich.


K-Mart was represented by Michael A. Kawash of Robinson & McElwee PLLC.


W.Va. Supreme Court of Appeals case number: 12-1127

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