Gloria J. Perkins v. Homer Laughlin China Co.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS December 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
GLORIA J. PERKINS, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 14-0167 (BOR Appeal No. 2048549)
(Claim No. 940004426)

THE HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Gloria J. Perkins, by Patrick Maroney, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The Homer Laughlin China Company,
by Lucinda Fluharty, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated January 23, 2014, in
which the Board reversed a June 21, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s January 13, 2012,
decision denying Ms. Perkins’s request for authorization of TENS unit supplies, office visits, and
medications. 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. Perkins injured her neck on August 6, 1993, while operating a piece of machinery
and the claim was later held compensable for a cervical sprain/strain. Following the compensable
injury, Ms. Perkins sought treatment with Michael Cozza, M.D., who treated her with various
medications, physical therapy, and a TENS unit for chronic neck, shoulder, and arm discomfort.
A cervical spine MRI was performed on May 5, 1997, and revealed disc bulges at C3-4, C4-5,
and C5-6 with degenerative changes present at all three levels. On December 4, 2006, Dr. Cozza
authored a statement of medical necessity and indicated that Ms. Perkins would require TENS
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unit supplies, non-steroidal anti-inflammatory drugs, pain medications, and physical therapy for
the remainder of her lifetime. On May 19, 2011, Dr. Cozza authored a second statement of
medical necessity indicating that Ms. Perkins requires TENS unit supplies.

On January 5, 2012, Richard Stigliano, D.O., performed a records review. He opined that
the 1993 cervical sprain should have resolved spontaneously with or without treatment within
twelve to sixteen weeks, and therefore no further treatment is necessary. He further opined that
the continued use of a TENS unit and pain medication in relation to the 1993 injury is not
reasonable given the length of time that has elapsed. On January 13, 2012, the claims
administrator denied further payment for medications, TENS unit supplies, and office visits
based on Dr. Stigliano’s report.1 Dr. Stigliano issued a second report on March 12, 2012,
reiterating the conclusions expressed in his initial report.

On February 27, 2013, Victoria Langa, M.D., performed an independent medical
evaluation. She diagnosed Ms. Perkins with a resolved cervical sprain/strain and age-related,
diffuse, multilevel degenerative disc disease/degenerative joint disease with disc space
narrowing, osteophyte spurring, and neuroforaminal narrowing. Dr. Langa opined that Ms.
Perkins has long-since reached maximum medical improvement in relation to the 1993 cervical
sprain/strain and noted that Dr. Cozza found that Ms. Perkins had reached maximum medical
improvement in 1996. She further opined that Ms. Perkins does not require any further treatment
for the 1993 compensable injury including a TENS unit, oral medications, or continuing office
visits. Finally, Dr. Langa opined that Ms. Perkins’s current complaints arise from age-related
cervical degenerative disc disease/degenerative joint disease and ongoing treatment for this
degenerative disease is unrelated to the August 6, 1993, injury.

On June 21, 2013, the Office of Judges reversed the January 13, 2012, claims
administrator’s decision and authorized further office visits and TENS unit supplies based on a
finding that both requests are medically related and reasonably required for the treatment of the
August 6, 1993, injury.2 On January 23, 2014, the Board of Review reversed the Office of
Judges’ Order and denied authorization for the TENS unit supplies, medications, and office visits
addressed in the January 13, 2012, claims administrator’s decision. Ms. Perkins disputes this
finding and asserts that the evidence of record shows that the requested TENS unit supplies,
medications, and office visits are necessary for the ongoing treatment of the August 6, 1993,
injury.

1
This Court notes that the medications referenced in the January 13, 2012, claims administrator’s
decision are not identified with any degree of specificity and are simply referenced as
“medications”. However, the evidentiary record indicates that Ms. Perkins was most recently
taking the medications Celebrex, Elavil, and Soma. Additionally, the claims administrator’s
decision fails to identify the medical professional Ms. Perkins is no longer authorized to see, but
it is assumed that the claims administrator references Dr. Cozza and members of his staff.
2
This Court notes that the Office of Judges’ Order did not address the authorization of the
unnamed medications for which authorization was denied in the January 13, 2012, claims
administrator’s decision.
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 The Office of Judges found that the opinion of Ms. Perkins’s treating physician, Dr.
Cozza, is more persuasive than the opinions of Drs. Stigliano and Langa when analyzing Ms.
Perkins’s treatment needs. Further, the Office of Judges noted that the claims administrator has
previously granted authorization for TENS unit supplies in the instant claim. The Office of
Judges then found that Dr. Cozza’s December 4, 2006, and April 19, 2011, statements of medical
necessity relate the use of the TENS unit to the treatment of the compensable injury.
Additionally, the Office of Judges found that because Dr. Cozza has treated Ms. Perkins with a
TENS unit since 1996, his findings regarding her ongoing care are persuasive. Finally, the Office
of Judges concluded that because Dr. Cozza is continuing to treat Ms. Perkins, further office
visits with him should be authorized.

In reversing the Office of Judges’ Order, the Board of Review relied on the opinions of
Dr. Stigliano and Dr. Langa, who both opined that Ms. Perkins’s current treatment is
unreasonable in relation to the August 6, 1993, injury. The Board of Review specifically took
note of Dr. Langa’s conclusion that Ms. Perkins’s current symptoms arise from degenerative disc
disease/degenerative joint disease. The Board of Review then concluded that further treatment
with medications, TENS unit supplies, and office visits does not constitute medically necessary
and reasonably required treatment for the August 6, 1993, injury. Upon review, this Court agrees
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:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Brent D. Benjamin

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