Dorothy C. Forman v. W. Va. Ofc. of Insurance Commissioner/Monongalia County Board of Ed.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS November 14, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DOROTHY C. FORMAN, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0817 (BOR Appeal No. 2047937 & 2047991)
(Claim No. 2001015792)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MONONGALIA COUNTY BOARD OF EDUCATION,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Dorothy C Forman, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Office of Insurance
Commissioner, by Gregory W. Evers, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated July 26, 2013, in which
the Board affirmed a November 16, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 18, 2012,
decision denying Ms. Forman’s request for the medication Celebrex and for the following
diagnoses to be added as compensable components: knee degenerative joint disease, trochanteric
bursitis of hip, illiotibial band syndrome, and right shoulder sprain. In its Order, the Board of
Review also affirmed a November 26, 2012, Order of the Workers’ Compensation Office of
Judges which affirmed the claims administrator’s November 9, 2011, decision denying Ms.
Forman any additional permanent partial disability award. 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
1
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. Forman worked as a teacher for Monongalia County Board of Education. She was
traveling between schools in a motor vehicle when she was rear ended by another motor vehicle.
The claim was initially held compensable for muscle spasms, thoracic sprain, and neck sprain
and subsequently held compensable for lumbosacral joint and ligament. Ms. Forman received an
11% permanent partial disability award. She filed an application requesting additional permanent
partial disability award. The claims administrator’s November 9, 2011, decision denied Ms.
Forman’s request for an additional permanent partial disability award and held she was fully
compensated by her prior award of 11% based on an independent medical evaluation completed
by Richard S. Kaplan, M.D. Ms. Forman also filed an application requesting the medication
Celebrex and that the following additional diagnoses be added as compensable components: knee
degenerative joint disease, trochanteric bursitis of hip, illiotibial band syndrome, and right
shoulder sprain. The claims administrator’s June 18, 2012, decision denied the request for
Celebrex and the request to add the additional diagnoses. It held that the requested diagnoses and
the medication are not related to the compensable injury of August 25, 2000.

In a November 16, 2012, Order, the Office of Judges affirmed the claims administrator’s
June 18, 2012, decision denying the requested additional compensable components and the
medication Celebrex. The Office of Judges found that the records show Ms. Forman has had
numerous non-compensable health problems, as well as a prior motor vehicle accident in 1998
for which she was still being treated for at the time of this work injury. The Office of Judges
noted that the request for Celebrex was from Mark Franz, D.O., and that he failed to provide any
explanation regarding the necessity of the medication for the compensable injury. On August 28,
2000, C.E. Bickerton, D.C., diagnosed Ms. Forman with sprain to neck and upper back, cervical
sprain, thoracic sprain, and muscle spasms. Dr. Bickerton noted Ms. Forman remained about the
same as last reported, which was prior to the work injury. Dr. Kaplan also examined Ms. Forman
and concluded that the medical documentation did not support a causal relationship between the
work injury and Ms. Forman’s current complaints. Dr. Kaplan further concluded that Ms.
Forman has fully recovered and has no remaining symptoms, physical examination findings,
diagnoses restrictions or limitations at this time regarding the compensable injury. He found the
treatment rendered to date has been overly excessive with reference to the mechanism of the
injury and particularly the delay in treatment. The Office of Judges noted that the request for the
additional diagnoses was also from Dr. Franz and that he again failed to provide a causal
connection between these diagnoses and the compensable injury. The Office of Judges
concluded that there is no convincing evidence that any of the requested diagnoses or the
medication Celebrex is related to the work injury in August of 2000.

In a November 26, 2012, Order, the Office of Judges affirmed the claims administrator’s
November 9, 2011, decision denying any additional permanent partial disability award. The
Office of Judges concluded that the report of Victor Poletajev, D.C., which found 22%
impairment, is unreliable because his addendum failed to provide any details regarding Ms.
2
Forman’s actual deficits and his initial independent medical examination dated April 4, 2004,
was not submitted to the Office of Judges’ evidence. The Office of Judges also reviewed Dr.
Bickerton’s independent medical evaluation, in which he found Ms. Forman has 23%
impairment under the American Medical Association’s Guides to the Evaluation of Permanent
Impairment, (5th ed. 2000). The Office of Judges concluded that Dr. Bickerton’s impairment
rating was premised on the inappropriate edition of the American Medical Association’s Guides
because West Virginia uses the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, (4th ed. 1993), for workers’ compensation claims. The Office of Judges
also looked at Dr. Kaplan’s report. Dr. Kaplan found that Ms. Forman had overtly generalized
pain syndrome not related to the work injury. He opined that Ms. Forman had fully recovered
from the August 25, 2000, work injury and made no impairment recommendation. The Office of
Judges concluded that the records prove that Ms. Forman suffers from multiple issues far
exceeding the work injury and there is no evidence to support finding Ms. Forman is entitled to
any additional permanent partial disability award.

The Board of Review affirmed the Order of the Office of Judges. We agree with the
reasoning of the Office of Judges and the conclusions of the Board of Review. Dr. Franz
requested the additional diagnoses and Celebrex but did not provide an explanation on how these
diagnoses or medication related to the compensable injury. The preponderance of the evidence
does not support the requested medication for the compensable injury and the diagnoses have not
been shown to be causally related to the work injury.

Furthermore, there is no reliable evidence that Ms. Forman is entitled to any additional
permanent partial disability for her August 25, 2000, injury. Several of the physicians have
opined that the numerous medications Ms. Forman is currently taking could be the cause of her
current complaints and that tapering off some of medications may cause her to feel better. Dr.
Poletajev’s and Dr. Bickerton’s reports were correctly found to be unreliable by the Office of
Judges. In addition, Dr. Kaplan found Ms. Forman has fully recovered from her compensable
injury with no remaining symptoms, physical examination findings, diagnoses restrictions or
limitations at this time regarding the compensable injury.

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: November 14, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
3
DISSENTING:
Justice Menis E. Ketchum

4