Supreme Court upholds decision denying medication to mechanic with alleged back pain

By Chandra Lye | May 23, 2017

CHARLESTON – The Supreme Court of Appeals for the State of West Virginia has affirmed a decision by the state’s Workers’ Compensation Board of Review denying medication for a mechanic who allegedly has ongoing back pain.

Kevin Powley appealed the decision made by the board that denied him the medications hydrocodone/APAP, neurontin and diazepam that had been prescribed to treat his pain. 

According to the court's opinion. Powley was diagnosed with lumbar spine pain following an injury in September 2013 while changing a bearing on a bus. He later informed a physician that he had felt a pop in his back and immediate pain. 

He was taken to Ruby Memorial Hospital where an examination and a CT scan determined he had a “neuroforaminal narrowing” but no acute problems were found. He was then diagnosed with lumbar back pain, court records state. 

Powley went to see Dr. Robert Gerbo for the first time a few days later. Gerbo ordered an MRI, which revealed mild disc bulges, a mild neural foraminal narrowing on some areas as well as central disc protrusion and a possible annual fissure, according to the court's opinion. 

However, there were no differences noted between an earlier lumbar MRI, which had been done the day before the incident, and the one ordered by Gerbo. As part of his ongoing treatment by Gerbo, the prescription was issued for the medication in question in March 2015. 

Several other doctors diagnosed Powley and determined that he did have back pain issues but did not believe the condition would call for the medications that were prescribed, according to court documents

The request was denied in June 2015 by the claims administrator. The Office of Judges affirmed that decision in December 2015 and by the Board of Review in May 2016.

The court stated it had carefully considered the evidence.

“Upon consideration of the standard of review, the briefs and the record presented, the court finds no substantial question of law and no prejudicial error.

“We 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 written decision was filed on May 5.

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