CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that an injury a man sustained was not caused by an accident at work.

The court found that the decision of the Board of Review was not in clear violation of any constitutional or statutory provision, nor was it clearly the result of erroneous conclusions of law, nor was it based upon a material misstatement or mischaracterization of the evidentiary record, according to the Feb. 4 memorandum decision.

The court has considered the parties’ briefs and the record on appeal, according to the decision. The appeal arises from the Board of Review’s Fiinal Order dated Nov. 24, 2014, in which the board affirmed a May 29, 2014, order of the Workers’ Compensation Office of Judges.

“In its order, the Office of Judges affirmed the claims administrator’s August 6, 2013, decision denying authorization for chiropractic treatment three times a week for four weeks and a referral to a neurologist,” the decision states. “The court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration.”

Robert J. Marriner III was a production line operator for Pennzoil-Quaker State Company and was injured on Feb. 23, 2007, while pushing, pulling, lifting and restacking four-gallon boxes and oil pallets.

“A report from Scott A. Owens, D.C., his treating physician, showed that he diagnosed a cervical sprain on March 14, 2007,” the decision states. “On March 20, 2007, Mr. Marriner had an MRI of his cervical spine. The impression was unremarkable. On April 10, 2007, Mr. Marriner filled out a report of injury for his neck.”

At some point in time, Marriner stopped treating with Owens and started treating with Dr. Joel D. Siegal and Dr. Chandler M. Kohli.

Siegal performed an examination on May 10, 2007, and reviewed the March 20, 2007, cervical spine MRI. He interpreted the MRI to show a left C6-7 disc protrusion and recommended conservative treatment, which included a Medrol Dose Pack, Naprosyn 500mg, Robaxin 750mg and physical therapy.

“On August 2, 2007, Mr. Marriner was seen by Dr. Kohli for a follow-up,” the decision states. “The arm pain was better following physical therapy. Mr. Marriner’s main complaint was right sub occipital pain and discomfort which was reproducible with palpation consistent with occipital neuralgia.”

Kohli recommended home cervical tractions, continued exercise and medication and perhaps an occipital nerve block.

On June 9, 2008, Marriner underwent a nerve conduction study and the impression was electrodiagnostic evidence of moderate to severe left carpal tunnel syndrome and mild to moderate right carpal tunnel syndrome.

On Aug. 23, 2012, Dr. Joseph M. Grady II conducted an independent medical evaluation and Grady opined that Marriner was at his maximum degree of medical improvement and suffered no ratable impairment.

On March 27, 2013, Owens examined Marriner again and determined that his current symptoms were a result of a lack of treatment and he diagnosed a cervical sprain/strain and a cervical disc bulge.

Owens treated Marriner with hydro collator, electric stimulation and adjustment of the cervical region. He recommended conservative care. Owens also submitted an authorization for three chiropractic treatments three times a week for four weeks, and a referral to a neurologist.

On June 24, 2013, Marriner underwent another MRI of the cervical spine and the impression was mild to moderate degenerative disc disease with C5-6 disc protrusion with inferior migration causing mild to moderate central canal stenosis.

On Aug. 3, 2013, Dr. Ronald J. Fadel performed a records review and recognized a three-year gap in treatment where Marriner worked without restrictions. He noted the accepted diagnosis is cervical sprain, and opined that discopathy and or neuropathy was not related and does not fall under the umbrella of the old claim coverage.

Fadel explained that the Feb. 23, 2007, injury could not have caused the pathology seen on the June 24, 2013, MRI because the March 20, 2007, MRI, which was taken after the compensable injury, was unremarkable.

“Based upon Dr. Fadel’s report, the claims administrator denied the August 6, 2013, request Dr. Owens submitted for authorization of three chiropractic treatments three times a week for four weeks and a referral to a neurologist,” the decision stated.

The Office of Judges determined that Marriner did not show that physical therapy was medically related and reasonably required to treat his cervical sprain. The Office of Judges recognized that Owens believed chiropractic treatment was reasonable and necessary due to alignment issues of the cervical spine causing increased pressure on the disc herniation.

The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

“We agree with the Office of Judges and Board of Review,” the decision states. “Mr. Marriner has failed to show that his physical therapy is medically related or reasonably required to treat his 2007 cervical sprain.”

The disc herniation is not related to the 2007 injury and if it were related to the injury, then it would have been visible on the March 20, 2007, MRI.

“Because the request for physical therapy is predicated on the treatment of the disc herniation, which is not a compensable condition, the Office of Judges and Board of Review were not in error for rejecting the treatment,” the decision states.

Marriner was represented by Patrick K. Maroney. Pennzoil was represented by James W. Heslep.

W.Va. Supreme Court of Appeals case number: 14-1308

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