CHARLESTON – The West Virginia Supreme Court of Appeals says that a Board of Review decision should be reversed after it found that the board’s decision was based upon a material misstatement or mischaracterization of the evidentiary record.

The claim was remanded with instructions to authorize an evaluation by a doctor at Orthopaedic and Spine Surgery Associates for Frank Johnson Jr.’s lower back injury he suffered during his employment, according to a memorandum decision filed Feb. 4 in the W.Va. Supreme Court of Appeals.

The appeal arises from the Board of Review’s final order dated Jan. 26, in which the board affirmed a Sept. 11, 2014, order of the Workers’ Compensation Office of Judges.

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

In its order, the OOJ affirmed the claims administrator’s Feb. 3, 2014, decision denying Johnson’s request for authorization of an evaluation by orthopedic surgeon Dr. R. Patel.

“The court has carefully reviewed the records, written arguments and appendices contained in the briefs, and the case is mature for consideration,” the decision states. “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 found that that Board of Review’s decision is based upon a material mischaracterization of the evidentiary record and the 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.

Johnson injured his lower back during the course of his employment on July 17, 1984, and was diagnosed with an acute lower back strain. The evidentiary record indicates that beginning in approximately 9187, Johnson began complaining of ongoing lower back pain and on Nov. 26, 2013, Dr. Robert Yee requested authorization for a surgical consultation with Patel in response to Johnson’s complaints of worsening lower back pain.

On Jan. 22, 2014, Dr. Saghir Mir examined Johnson and diagnosed him with chronic lower back pain arising from progressive degenerative changes in the entire lumbar spine, which are attributable to naturally occurring causes and opined that Johnson’s current symptoms are not a result of the 1984 injury.

On Feb. 3, 2014, the claims administrator denied Johnson’s request for authorization of an evaluation by Patel, stating that the requested evaluation was not medically necessary. The Board of Review affirmed the reasoning and conclusions of the OOJ in its decision dated Jan. 26, 2015.

“We disagree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the memorandum decision states. “The results of the November 1, 2013, lumbar spine MRI show that Mr. Johnson has left paracentral disc protrusion at L5-S1, disc bulging at L2-3 and L4-5, central canal stenosis at L2-5 and neural oraminal stenosis. By requesting that the claims administrator authorize a consultation with an orthopedic surgeon for further evaluation of the lumbar spine in light of the results of the November 1, 2013, MRI, it appears Mr. Johnson’s treating physician, Dr. Yee, related Mr. Johnson’s current condition to the July 17, 1984, lumbar spine injury.”

Therefore, an evaluation by an orthopedic surgeon regarding Johnson’s symptoms is appropriate, according to the decision.

In his dissent, Loughry stated that the majority incorrectly reasoned that Johnson is entitled to an evaluation by an orthopedic surgeon.

There is nothing in the evidentiary record linking the findings of the MRI with the compensable 1984 lumbar sprain, according to his dissent.

Loughry wrote that the only evidence of record addressing the findings of the Nov. 1, 2013, lumbar spine MRI in relation to the 1984 lumbar sprain indicates that Johnson’s current condition arises solely from naturally occurring age-related degenerative changes.

“Because it is clear that the majority has simply re-weighed the evidence to find in favor of Mr. Johnson, I respectfully dissent,” Loughry wrote.

W.Va. Supreme Court of Appeals case number: 15-0092

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