Supreme Court says claims administrator rightfully denied request

By Kyla Asbury | Mar 12, 2018

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a claims administrator was right to deny a request for a neurosurgeon referral for a work injury.

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a claims administrator was right to deny a request for a neurosurgeon referral for a work injury.

Warren Curry appealed the decision of the West Virginia Workers’ Compensation Board of Review, according to a recent memorandum decision.

Curry’s claim was held compensable for a lumbar strain/sprain and the issue on appeal was whether a referral to a neurosurgeon for a consultation should be authorized as reasonable and necessary medical treatment.

On March 3, 2016, the claims administrator denied a request for a referral to a neurosurgeon and the Office of Judges affirmed the decision on Feb. 6, 2017.

The order was affirmed by the Board of Review on Aug. 23. 

Curry was lifting seven foot scoop doors when he injured his left shoulder and low back on Sept. 30, 2014. On Oct. 7, 2014, he was treated in the emergency room at Williamson Memorial Hospital for complaints of low back pain and Curry was diagnosed with a lumbar strain.

Prior to that injury, Curry injured his low back at work in 1979, 1983 and 1986. The 1986 injury was the most serious as it required a two-week hospitalization.

Dr. Paul Bachwitt performed an independent medical evaluation on Jan. 22, 2015, regarding a request for epidural steroid injections. Bachwitt noted that Curry’s symptoms included aching, dull back pain that radiated into his right leg. A lumbar spine x-ray revealed degenerative changes at L3-L4 and L4-L5.

Bachwitt diagnosed lumbar sprain/strain superimposed on pre-existing degenerative changes.

On Aug. 6, 2015, Bachwitt performed a follow-up independent medical evaluation regarding a request for EMG/NCV testing. On Jan. 26, 2016, Bachwitt issued a third report after performing a third evaluation of Curry.

In the third report, Bachwitt noted Curry had received the recommended epidural steroid injections and that there was no need for any additional treatment.

In his opinion, Bachwitt opined that Curry’s simple sprain/strain should have resolved within two to three months after the Sept. 30, 2014, injury. A Feb. 2, 2016, lumbar spine MRI revealed multi-level degenerative changes, worse at L3-L4 and L5-S1.

Curry’s family physician, Dr. Brian Francis requested a referral to a neurosurgeon on Feb. 3, 2016, and, six days later, Bachwitt opined that Curry’s chronic low back pain documented in the medical records was not due to the work-related simple lumbar strain/sprain. He believed Curry did not need a neurosurgical consultation because there was no clinical evidence of an operative disc lesion.

On March 3, 2016, the claims administrator denied Francis’s request for a referral to a neurosurgeon based on Bachwitt’s opinion.

On Feb. 6, 2017, the Office of Judges affirmed the claims administrator’s denial of the request for a referral to a neurosurgeon. 

The Office of Judges determined that the neurosurgical consultation was not necessary treatment for the lumbosacral sprain/strain.

The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its order on Aug. 23, 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. “Mr. Curry had longstanding lumbar spine symptoms. The claim was compensable for a lumbar sprain/strain. The lumbar sprain/strain should have resolved within six to eight weeks of the injury.”

The Supreme Court ruled the Office of Judges’ order was properly affirmed.

“For the foregoing reasons, 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 decision states. “Therefore, the decision of the Board of Review is affirmed.”

W.Va. Supreme Court of Appeals case number: 17-0845

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