SC rules referral to neurosurgeon not compensable

CHARLESTON - The state Supreme Court of Appeals has issued an opinion in a case involving the foreman at a coal mine.

James Albert Bowers, Jr. appealed the decision of the West Virginia Workers' Compensation Board of Review that was filed on May 9, 2011, in which the board affirmed on Oct. 26, 2010, Order of the Workers' Compensation Office of Judges.

In its order, the Office of Judges affirmed the claims administrator's June 22, 2010, decision in which it denied authorization for a referral to a neurosurgeon, according to a memorandum decision filed March 14 in the Supreme Court of Appeals of West Virginia.

Bowers worked in Newtown's coal mines as a mine foreman and suffered injuries, including rotator cuff syndrome, bicipital tenosynovitis, other affections of the shoulder region, a tear of the medial meniscus, a sprain/strain of the neck and a sprain/strain of the lumbar region.

On June 22, 2010, the claims administrator denied authorization for a referral to a neurosurgeon because of an independent medical examination completed by Dr. P.B. Mukkamala on July 8, 2009, according to the decision.

The Office of Judges concluded that the referral to a neurosurgeon was for lumbar conditions that were not compensable injuries in the claim, and, on appeal, Bowers disagreed and asserted that the requested treatment was medically reasonable and necessary and proven by his treating physician.

The decision states that the Office of Judges affirmed the claims administrator's decision and noted that the claim was only compensable for a lumbar sprain and concluded that the referral was for a non-compensable condition.

The Supreme Court agreed with the reasoning and conclusions of the Board of Review.

"(W)e 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," the decision states.

The decision was concurred in by justices Robin J. Davis, Margaret L. Workman and Allen H. Loughry II. Justices Brent D. Benjamin and Menis E. Ketchum were of dissenting opinion.