Sherry Carroll v. Cardinal Health 110, Inc.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS December 13, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
SHERRY CARROLL, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 12-0369 (BOR Appeal No. 2046362)
(Claim No. 2010106749)

CARDINAL HEALTH 110, INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Sherry Carroll, by M. Jane Glauser, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Cardinal Health 110, Inc., by Sean
Harter, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated February 22, 2012, in
which the Board affirmed an August 19, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed four claims administrator’s decisions. The
November 29, 2010, decision closed the claim on a temporary total disability benefits basis. The
January 5, 2011, decision denied a request for authorization for a referral to Dr. El-Kadi and a
referral to Dr. Sakla. The March 25, 2011, decision denied authorization for rehabilitation
services. Finally, the March 25, 2011, decision denied a request for the medication Lyrica, a
referral to a rheumatologist for fibromyalgia, a full cervical MRI, and a referral to Dr. El-Kadi.
The Order of the Office of Judges affirmed each of the four claims administrator’s decisions. 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.

Ms. Carroll was a warehouse worker for Cardinal Health 110, Inc. On August 25, 2009,
Ms. Carroll injured her right shoulder, neck, and right side while lifting a tote onto a conveyor
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belt. Her claim was initially held compensable for a right shoulder sprain but the claims
administrator subsequently added the diagnoses of right trapezius strain, right cervical strain, and
thoracic spine strain as compensable conditions of the claim. Ms. Carroll received various
treatments and services on this claim including cervical epidural steroid injections. Ms. Carroll
was primarily treated by Dr. Kovalick who consistently found that Ms. Carroll was temporarily
and totally disabled. But on October 21, 2010, Dr. Grady performed an independent medical
evaluation on Ms. Carroll. Dr. Grady found that Ms. Carroll had cervical steroid injections on a
couple of occasions without any significant improvement. Dr. Grady found that Ms. Carroll had
reached the maximum degree of medical improvement with respect to the compensable
conditions of this claim. Dr. Grady stated that additional physical therapy, injections, or invasive
treatment would not significantly alleviate her symptoms. Dr. Grady did opine that non-steroidal
anti-inflammatory medication would be reasonable to treat her compensable injuries.

Despite Dr. Grady’s findings, Dr. Kovalick found that Ms. Carroll continued to
experience pain and suspected that she may have fibromyalgia. Dr. Kovalick then made a series
of requests for authorization for additional treatment. On November 29, 2010, the claims
administrator closed the claim for temporary total disability benefits based on Dr. Grady’s report.
On January 5, 2011, the claims administrator denied a request for authorization for a referral to
Dr. El-Kadi, a neurosurgeon, and a referral to Dr. Sakla, for a series of trigger point injections.
On March 25, 2011, the claims administrator denied a request for authorization for rehabilitation
services. Finally, on March 25, 2011, the claims administrator denied a request for the
medication Lyrica, a referral to a rheumatologist for fibromyalgia, a full service MRI, and a
referral to Dr. El-Kadi. Following these decisions, Dr. Hennessey performed an independent
medical evaluation on Ms. Carroll and found no evidence of residual impairment from her injury.
Dr. Hennessey also found that Ms. Carroll had reached the maximum degree of medical
improvement relating to her August 25, 2009, injury. On August 19, 2011, the Office of Judges
affirmed the November 29, 2010, January 5, 2011, and both March 25, 2011, claims
administrator decisions. The Board of Review then affirmed the Order of the Office of Judges on
February 22, 2012, leading Ms. Carroll to appeal.

The Office of Judges concluded that Ms. Carroll was not entitled to further consideration
for temporary total disability benefits. The Office of Judges also concluded that Ms. Carroll was
not entitled to an MRI, trigger point injections, the medication Lyrica, or any further treatment,
evaluations, or rehabilitation services in relation to this claim. The Office of Judges found that
both Dr. Grady and Dr. Hennessey had found that Ms. Carroll had reached the maximum degree
of medical improvement with respect to the compensable conditions of the claim. The Office of
Judges found that even Ms. Carroll’s treating physician, Dr. Kovalick, did not relate the
requested treatments to a compensable condition of the claim but instead attributed Ms. Carroll’s
continuing pain to fibromyalgia. The Office of Judges found that there was no evidence in the
record which causally related this condition to Ms. Carroll’s compensable strain injuries. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Carroll was deemed to have reached the maximum degree of medical improvement
with respect to her compensable injuries and her claim was properly closed for temporary total
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disability benefits. Ms. Carroll has not presented sufficient evidence to demonstrate that she
continues to be temporarily and totally disabled. Ms. Carroll has also not demonstrated that the
requested treatments and services are reasonably related and medically necessary to treat a
compensable condition of the claim. Dr. Grady believed that Ms. Carroll would not derive
significant benefit from any additional injections, physical therapy, or invasive procedures. Dr.
Grady’s opinion is reflected in the record as a whole. The evidence in the record indicates that
Ms. Carroll’s continuing symptoms relate to fibromyalgia, which is an unrelated and non­
compensable condition.

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.

ISSUED: December 13, 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

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