WV Supreme Court orders authorization of injured bus driver's MRI

By Karen Kidd | Apr 3, 2017

CHARLESTON – West Virginia's Workers’ Compensation Board of Review has been ordered by the state's Supreme Court of Appeals to authorize a medically recommended procedure for a Wood County Schools bus driver injured on the job in 2010.

In a 3-2 ruling issued earlier this month, the appeals court ruled that the board's previous decision denying the procedure recommended by Charleston neurosurgeon Matthew Walker had been based on mischaracterized evidence.

"The Board of Review erred in affirming the Office of Judges’ decision affirming the denial of Dr. Walker’s request for authorization of a lumbar spine MRI," the court's decision read.

With that ruling, the Board of Review's previous denial was reversed and the board was ordered to authorize the requested lumbar spine MRI. The March 3 ruling marked the third time the high court has ruled in the case.

The two justices on the high court who dissented, Chief Justice Allen H. Loughry II and Justice Elizabeth D. Walker, maintained the bus driver suffers from a pre-existing condition.

Gabriele Bischof, who still is a Wood County Schools bus operator, according to the school board's employee directory, injured her lower back on Aug. 27, 2010, while trying to stop a child from prematurely exiting a school bus, according to court records. Her subsequent workers’ compensation claim initially was approved for a lower back sprain, lower back pain, and lumbosacral neuritis/radiculitis. The following September, she was diagnosed with sciatica and a lumbar spine MRI revealed a bulge in one of the discs and other problems in her spine.

Bischof was referred to Dr. Walker, no apparent relation to Justice Walker, who treated her spine ailments with injections and also consulted with Vienna physiatrist Michael Shramowiat. By December 2011, Bischof's condition seemed to improve but over time the injections gradually provided less pain relief. Surgery was recommended and on May 15, 2014, Dr. Walker said that another lumbar spine MRI was necessary before they could proceed.

By that time, Dr. Walker had diagnosed Bischof with L5-S1 spondylolisthesis with stenosis. The following July, Dr. Walker stated in a letter that this condition probably had been present prior to Bischof's on-the-job injury but that all of the pain she was in is caused by the Aug. 27, 2010, injury she suffered and that surgical intervention now was necessary.

On Jan. 26, 2015, the claims administrator in Bischof's case denied Dr. Walker’s request. The Office of Judges, in affirming the administrator's decision, ruled that the evidence in the case indicates that the lumbar spine MRI is not reasonably required for the treatment of a compensable component of the instant claim.

In its March 1, 2016 decision, the Board of Review affirmed the Office of Judges opinion.

This lead to Bischof's first appeal to the West Virginia Supreme Court, which in May of 2016 affirmed the Board of Review's decision. The state's high court, in a unanimous ruling, said there'd been no clear violation of any constitutional or statutory provision "nor is it based upon a material misstatement or mischaracterization of the evidentiary record".

Bischof again appealed and in November the West Virginia Supreme Court, in a 3-2 split with then Justices Loughry and Brent D. Benjamin dissenting, ruled the Board of Review's decision had been based upon a mischaracterization of the evidentiary record after all.

Justice Walker defeated Justice Benjamin in the general election, changing the court between the November and March rulings. Justice Walker joined with now Chief Justice Loughry in dissenting in the Bischof case March 3, stating Bischof suffers from a pre-existing condition.

"While she suffered a work-related injury on August 27, 2010, which resulted in the compensable diagnoses of lower back strain, lower back pain, and lumbosacral radiculitis/neuritis, the record shows that the claimant reached maximum medical improvement on October 27, 2010," Chief Justice Loughry wrote in his join dissent with Justice Walker. "As in her prior appeal, the claimant is seeking authorization in this case for a medical benefit necessitated by her pre-existing conditions rather than the compensable injury. Therefore, authorization for the requested lumbar spine MRI should have been denied."

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