By Kyla Asbury | Jan 8, 2018


CHARLESTON – The West Virginia Supreme Court of Appeals affirmed a decision of the West Virginia Workers’ Compensation Board of Review to deny a spinal cord stimulator.

Thomas Gwinn Jr. appealed the decision of the West Virginia Workers’ Compensation Board of Review.

The issue on appeal is whether a spinal cord stimulator should be authorized, according to the Dec. 19 memorandum decision.

The claims administrator granted Gwinn a 5 percent permanent partial disability award on Nov. 11, 2015. On Aug. 17, 2016, the claims administrator denied a request for a spinal cord stimulator.

In its order, the Office of Judges also affirmed the Aug. 17, 2016, claims administrator’s decision. The order was affirmed by the Board of Review on June 15.

Gwinn, an electrician, was injured in the course of his employment on March 23, 2012, while installing a motor in a mantrip. The employees’ and physicians’ report of injury indicates he injured his back while installing a motor. The injury was listed as a sprain/strain to the back.

The claim was held compensable for lumbar sprain/strain on April 27, 2012 and, on May 23, 2012, the claims administrator issued a decision that listed the accepted diagnoses as lumbar sprain/strain and cervical sprain/strain. Thoracic sprain/strain was later added as a compensable condition.

On July 28, 2012, a thoracic MRI showed compression deformities of the vertebrae, posterior element disruption or malalignment, acquired disc herniations at T4-5 and T6-7 contributing to neural impingement and central canal stenosis, and central spinal canal stenosis on a congenital basis from T4 to T11 as a result of congenitally short pedicles.

In a treatment note dated Nov. 25, 2015, Dr. Rajesh Patel noted that Gwinn was still reporting severe pain in his neck, low back and legs and Patel referred him to a pain clinic for epidural and facet injections.

Dr. Timothy Deer recommended a spinal cord stimulator, injections and a thoracic RFA procedure. Lisa Harris, a physical therapist, submitted a request stating that Gwinn was an excellent candidate for a spinal cord stimulator on July 21, 2016. The claims administrator denied the request for a spinal cord stimulator on Aug. 17, 2016.

The Office of Judges affirmed the claims administrator’s decision denying a request for a spinal cord stimulator on Dec. 16, 2016.

“The Office of Judges found that the claims administrator denied the request for a spinal cord stimulator because West Virginia Code of State Rule § 85-20 (2006) provides that spinal cord stimulators are only allowed when other treatments, like medication and physical therapy, have failed,” the decision states. “Mr. Gwinn reported on July 1, 2016, that he had 70-75% pain relief from injections. The Office of Judges noted that he had prior lumbar spine injuries for which he had received a 2% permanent partial disability award.”

“The Office of Judges ultimately concluded that Mr. Gwinn failed to show by a preponderance of the evidence that a spinal cord stimulator was necessary treatment for the compensable conditions,” the decision states. “Instead, the evidence shows that the request was to treat conditions that preexisted the compensable injury.”

The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its order on June 15, 2017.

“After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states. “The claim has been held compensable for lumbar, thoracic, and cervical sprains/strains only. A spinal cord stimulator is not appropriate treatment for a sprain/strain. The stimulator was requested to treat noncompensable, preexisting conditions and was therefore properly denied.”

The Supreme Court found 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.

W.Va. Supreme Court of Appeals case number: 17-0625

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