STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS September 12, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
MARGARET R. PIERCE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-1629 (BOR Appeal No. 2046210)
(Claim No. 780010912)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
OWENS-ILLINOIS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Margaret R. Pierce, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by Gary
M. Mazezka, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated November 14, 2011, in
which the Board affirmed a June 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 20,
2010, decision denying authorization for bilateral lower extremities electromyography (EMG)
studies. The Court has carefully reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. 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. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
1
Ms. Pierce sustained a low back injury on August 17, 1977, unloading pallets while
working for Owens-Illinois, Inc. Initially, she received conservative treatment but on October 11,
1979, Dr. Wang performed surgery at the L4-L5 disc of Ms. Pierce’s lumbar spine. Following
her surgery, Ms. Pierce went several years without receiving any treatment based on this claim.
But on April 28, 2010, Ms. Pierce was examined by Dr. France, for complaints of radiating pain.
Dr. France requested an EMG of Ms. Pierce’s bilateral lower extremity to assess L4 nerve root
damage in light of her difficulty walking and her right quadriceps numbness. Ms. Pierce was
then referred to Dr. Kaplan, who could not find a causal connection between Ms. Pierce’s
compensable injury and her current condition. Dr. Kaplan noted that Ms. Pierce suffered from
substantial neurological and musculoskeletal impairment but he did not attribute this condition to
her August 17, 1977, injury. Dr. Kaplan stated that Ms. Pierce should not receive any further
treatment, medications, or studies on the basis of this claim. Based on Dr. Kaplan’s findings, the
claims administrator denied authorization for a bilateral lower extremity EMG study on
September 20, 2010. The Office of Judges affirmed the claims administrator’s decision on June
29, 2011. The Board of Review affirmed the Office of Judges’ Order on November 14, 2011,
leading Ms. Pierce to appeal.
In its Order, the Office of Judges concluded that Ms. Pierce was not entitled to
authorization for bilateral lower extremity EMG studies in connection to her compensable injury
of August 17, 1977. The Office of Judges concluded that it was not reasonably required medical
treatment in the context of her injury. According to the Office of Judges, Ms. Pierce did not meet
her burden in showing that the requested studies were reasonably required medical treatment of
her compensable injury. In making this determination, the Office of Judges relied on the report
of Dr. Kaplan because he provided a greater explanation of Ms. Pierce’s current symptoms and
convincingly contrasted it with the symptoms of her compensable injury. The Office of Judges
also found that Dr. Kaplan’s report more directly related to the questions posed by the current
litigation. The Board of Review adopted the findings of the Office of Judges and affirmed its
Order.
We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Ms. Pierce has not presented sufficient evidence to show that the requested bilateral
lower extremity EMG studies are reasonably necessary and medically related to a compensable
condition that she received more than thirty years ago. There is no evidence in the record which
demonstrates a causal connection between the requested studies and her compensable injury. The
Office of Judges had specific and credible reasons to rely on the report of Dr. Kaplan and the
remaining evidence in the record supports its conclusion.
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. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
2
ISSUED: September 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3