STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS December 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
REBECCA L. FAULKNER, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 14-0163 (BOR Appeal No. 2048674)
(Claim No. 2007219123)
WHEELING-NISSHIN, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Rebecca L. Faulkner, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Wheeling-Nisshin, Inc., by Marion
Ray, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated January 24, 2014, in
which the Board affirmed a July 19, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 14,
2012, decision denying a request to add lower extremity radicular syndrome and discogenic
syndrome as compensable components of the claim. The Office of Judges reversed the claims
administrator’s February 2, 2013, decision denying a request for authorization of the medication
Lyrica and authorized the requested medication. Additionally, the Office of Judges reversed
another claims administrator’s decision dated February 2, 2013, denying a request for
authorization of an interlaminal epidural steroid injection and authorized the requested
treatment.1 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
The portion of the Office of Judges’ decision reversing both of the February 2, 2013, decisions
has not been appealed to this Court.
1
Ms. Faulkner sustained serious injuries on March 18, 2007, when she fell a distance of
approximately fifteen to twenty feet while attempting to avoid a piece of construction equipment.
She was immediately treated in the University of Pittsburgh Medical Center’s Presbyterian
Hospital emergency department for a closed head injury with loss of consciousness, an acute L1
compression fracture, and a fracture of the medial malleolus. Ms. Faulkner’s claim was held
compensable for fracture of the ankle, fracture of a lumber vertebra, injury of other unspecified
sites, and major depressive disorder.
Ms. Faulkner has undergone a T11 – L3 posterior spinal fusion, along with extensive pain
management therapy, following the March 18, 2007, accident. On July 19, 2012, Lloyd
Lamperski, M.D., Ms. Faulkner’s treating physician, completed a diagnosis update request
listing Ms. Faulkner’s current diagnoses as lumbar spine pain, lower extremity radicular
syndrome, discogenic syndrome, and thoracic spine pain. On September 26, 2012, Randall Short,
D.O., performed a records review and recommended denying Dr. Lamperski’s request to add
lower extremity radicular syndrome and discogenic syndrome as compensable components of the
claim. After reviewing Ms. Faulkner’s medical record, including multiple treatment notes from
Dr. Lamperski, Dr. Short concluded that the record contains no objective medical evidence
confirming the presence of radiculopathy aside from Ms. Faulkner’s subjective complaints of
lower back pain radiating in to the left lower extremity. Dr. Short then opined that the current
compensable diagnosis regarding the lumbar spine accounts for Ms. Faulkner’s continuing
lumbar spine pain which, in actuality, is a symptom and not an objective medical finding.
On December 14, 2012, the StreetSelect Grievance Board relied on Dr. Short’s record
review in making its determination that the request to add lower extremity radicular syndrome
and discogenic syndrome as compensable components of the claim should be denied. On the
same date, the claims administrator denied Dr. Lamperski’s request to add lower extremity
radicular syndrome and discogenic syndrome as compensable components of the claim. On
February 2, 2013, the claims administrator denied a request from Dr. Lamperski for authorization
of the medication Lyrica. In a separate February 2, 2013, decision, the claims administrator
denied a request from Dr. Lamperski for authorization of an interlaminal epidural steroid
injection.
In its Order, the Office of Judges affirmed the December 14, 2012, claims administrator’s
decision denying the request to add lower extremity radicular syndrome and discogenic
syndrome as compensable components of the claim. Additionally, the Office of Judges reversed
both of the February 2, 2013, claims administrator’s decisions, and authorized the use of the
medication Lyrica and authorized the requested interlaminal epidural steroid injection. As noted
above, the Office of Judges’ reversal of the February 2, 2013, claims administrator’s decisions
has not been appealed to this Court. Therefore, the sole issue on appeal is the compensability of
lower extremity radicular syndrome and discogenic syndrome. On appeal, Ms. Faulkner asserts
that the evidence of record demonstrates that she is experiencing symptoms associated with
lumbar radiculopathy, and therefore the requested additional compensable diagnoses should be
added as compensable components of the claim.
2
Dr. Lamperski requested the addition of lower extremity radicular syndrome and
discogenic syndrome as compensable components of the claim following Ms. Faulkner’s
continued reports of lumbar and thoracic pain that radiates down the posterior aspect of the left
lower extremity. In affirming the claims administrator’s December 14, 2012, decision, the Office
of Judges relied on Dr. Short’s finding that Ms. Faulkner’s subjective complaints are not
supported by objective medical evidence verifying the presence of lumbar radiculopathy.
Further, the Office of Judges relied on Dr. Short’s conclusion that the current compensable
diagnoses in the instant claim encompass Ms. Faulkner’s current symptomology. The Board of
Review affirmed the reasoning and conclusions of the Office of Judges in its decision of January
24, 2014. We agree with the reasoning and conclusions of the Board of Review.
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 2, 2014
CONCURRED IN BY:
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
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