FILED
March 23, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
CHARLES CAMPBELL,
Claimant Below, Petitioner
vs.) No. 21-0050 (BOR Appeal No. 2055720)
(Claim No. 2014021769)
DEBRICH, LLC/DUSTER TRUCKING,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Charles Campbell, by counsel Reginald D. Henry and Lori J. Withrow, appeals
the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). Debrich, LLC/Duster Trucking, by counsel Daniel G. Murdock, filed a timely
response.
The issue on appeal is whether Mr. Campbell is entitled to the requested treatment in the
claim. On March 27, 2020, the claims administrator issued an Order denying three separate
requests for medical treatment: (1) a November 1, 2019, request for a referral to a neurologist;
(2) a November 1, 2019, request for a peripheral nerve trial; and (3) an October 3, 2019, request
for left lumbar sympathetic plexus block injections. The Workers’ Compensation Office of
Judges (“Office of Judges”) affirmed the claims administrator’s Order on September 18, 2020.
This appeal arises from the Board of Review’s Order dated December 30, 2020, in which the
Board affirmed the Order of the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
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(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions.
(c) If the decision of the board represents an affirmation of a prior ruling
by both the commission and the office of judges that was entered on the same
issue in the same claim, the decision of the board may be reversed or modified by
the Supreme Court of Appeals only if the decision is in clear violation of
Constitutional or statutory provision, is clearly the result of erroneous conclusions
of law, or is based upon the board’s material misstatement or mischaracterization
of particular components of the evidentiary record. The court may not conduct a
de novo re-weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Campbell, a truck driver, was injured in the course of his employment on January 24,
2014. The Employees’ and Physicians’ Report of Injury, completed that day, indicates he injured
his left ankle when he stepped on a lump of coal at a river dock. The physician’s section was
completed by Huy Nguyen, M.D., who listed the diagnosis as left ankle fracture. The claim was
held compensable for lateral malleolus fracture on January 31, 2014.
A left ankle MRI, performed on August 27, 2014, showed an old fracture of the distal
fibula but no evidence of acute fracture or disruption of tendons or ligaments. Mr. Campbell
underwent a 3-phase bone scan which showed results consistent with a left ankle fracture on
March 6, 2015. There was no evidence of complex regional pain syndrome.
On April 11, 2016, ChuanFang Jin, M.D., performed an Independent Medical Evaluation
in which she diagnosed distal fibular fracture with nonunion and chronic pain syndrome. Dr. Jin
opined that Mr. Campbell had reached maximum medical improvement. She asserted that the
only treatment that would provide long-term benefits was exercise. Dr. Jin assessed 4% left ankle
impairment. The claims administrator granted a 4% permanent partial disability award on May
19, 2016.
Timothy Deer, M.D., completed a diagnosis update on September 26, 2016, in which he
requested the addition of causalgia of the lower limb to the claim. He also requested
authorization of a trial spinal cord stimulator. He noted that Mr. Campbell had localized muscle
atrophy, abnormal color and pigmentation, abnormal temperature, abnormal hair growth, and
coldness in the lower left leg.
On July 7, 2017, the Office of Judges authorized a referral to a neurologist, affirmed a
denial of a left lumbar sympathetic plexus block, added complex regional pain syndrome to the
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claim, denied authorization for a psychological evaluation for a spinal cord stimulator, and
denied authorization of a 3-phase bone scan.
Prasadarao Mukkamala, M.D., performed an Independent Medication Evaluation on
August 29, 2017, in which he diagnosed left distal fibula fracture and found that Mr. Campbell
had reached maximum medical improvement. He assessed 4% impairment and opined that there
was no evidence of complex regional pain syndrome.
On January 17, 2018, Bruce Guberman, M.D., performed an Independent Medical
Evaluation in which he diagnosed history of left lateral malleolus fracture and chronic regional
pain syndrome. Dr. Guberman found that Mr. Campbell had reached maximum medical
improvement and assessed 2% impairment due to nerve damage and 9% due to range of motion
restrictions. His combined total impairment rating was 11%.
Mr. Campbell was treated by Wilfrido Tolentino, PA-C, who diagnosed left lower
extremity complex regional pain syndrome type II on January 24, 2018. On February 12, 2018,
Mr. Campbell treated with Samrina Hanif, M.D., who diagnosed complex regional pain
syndrome. She referred Mr. Campbell to a pain clinic. Mr. Campbell treated with the Center for
Pain Relief, which requested authorization for a trial spinal cord stimulator to treat causalgia of
the left lower limb on February 23, 2018. A March 26, 2018, treatment note by Mr. Tolentino
indicates the diagnosis remained complex regional pain syndrome. Mr. Tolentino requested
authorization for a left lumbar sympathetic block to treat causalgia of the left leg. He also
requested authorization of a spinal cord stimulator trial.
On March 27, 2018, in three separate decisions, the claims administrator denied a request
for aquatic therapy, denied a request for a trial spinal cord stimulator, and denied a request for a
comprehensive evaluation as well as a second opinion on a neurostimulator. On April 13, 2018,
Mr. Campbell returned to Dr. Deer. The diagnosis remained complex regional pain syndrome.
On examination, Mr. Campbell had increased swelling, blue coloration, and coldness in the left
ankle as well as pain and limited mobility. Dr. Deer opined that Mr. Campbell’s complex
regional pain syndrome had progressively worsened.
Dr. Deer stated in an April 24, 2018, letter that Mr. Campbell developed complex
regional pain syndrome as a result of his compensable injury. Dr. Deer stated that the condition
was stable but had recently begun to worsen. Dr. Deer opined that Mr. Campbell had an 80%
chance of sustained relief with a spinal cord stimulator. He stated that such treatment was
directly related to the compensable injury. The claims administrator denied a request for a
lumbar sympathetic block on May 3, 2018.
In a July 23, 2018, supplemental report, Dr. Mukkamala stated that he disagreed with Dr.
Guberman’s evaluation findings. He noted that Dr. Jin found Mr. Campbell to be at maximum
medical improvement in her evaluation, and in his own evaluation, Dr. Mukkamala also found
that Mr. Campbell had reached maximum improvement. Therefore, Dr. Mukkamala reasoned
that Mr. Campbell’s condition had remained steady. Dr. Mukkamala opined that Dr. Guberman’s
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report was unreliable and that his impairment assessment was inaccurate and invalid. Dr.
Mukkamala noted that neither he nor Dr. Jin found impairment for the left toes.
In a July 31, 2018, supplemental report, Dr. Jin stated that Dr. Guberman rated
impairment for Mr. Campbell’s left toes, which were uninjured, and failed to compare the
measurements to the right foot toes. She asserted that there should be no permanent impairment
due to an ankle fracture. Lastly, Dr. Jin opined that the criteria Dr. Guberman used to rate
neurological impairment was based on a peripheral nerve injury, a non-compensable condition.
Dr. Jin found no evidence of peripheral nerve injury in this case.
On September 28, 2018, Mr. Campbell continued to complain of pain, anxiety, and
depression, as noted in Dr. Deer’s notes. Dr. Deer diagnosed complex regional pain syndrome of
the lower left limb and indicated he should undergo an EMG/nerve conduction study, physical
therapy, and a trial spinal cord stimulator. That same day, the Center for Pain Relief requested an
EMG of Mr. Campbell’s left lower extremity. However, in an Order dated November 16, 2018,
the Office of Judges affirmed the claims administrator’s prior denials of requests for a trial spinal
cord stimulator, a neurostimulator, and a lumbar sympathetic block. 1
In a letter dated August 9, 2019, Dr. Deer reported that Mr. Campbell suffered an injury
to his ankle, and he subsequently developed complex regional pain syndrome of the lower
extremity. Dr. Deer noted that he responded somewhat to injections and physical therapy;
however, he stabilized with persistent pain. Dr. Deer opined that his requests for a spinal cord
stimulation trial with a referral to an orthopedic surgeon is medically necessary to treat the
compensable injury of January 24, 2014. It was Dr. Deer’s opinion that Mr. Campbell had not
reached maximum medical improvement. On November 1, 2019, Dr. Deer requested a referral to
John M. Tabit, M.D., because Dr. Malayil did not take workers’ compensation patients. Also, on
November 1, 2019, Dr. Deer requested a peripheral nerve trial for Mr. Campbell.
In an Independent Medical Evaluation of November 6, 2019, Dr. Mukkamala concluded
that Mr. Campbell had reached his maximum degree of medical improvement and had probably
done so by August 18, 2014, based upon his diagnostic testing. Dr. Mukkamala opined that he
required no further treatment. He further noted that Mr. Campbell’s left ankle condition had been
stable for the last five years, and Dr. Mukkamala saw no reason to refer him to an orthopedic
specialist. Dr. Mukkamala concluded by stating that the entire treatment which Mr. Campbell
had been receiving for the past five years had been unnecessary and that there was absolutely no
indication for a spinal cord stimulator.
In his testimony, taken under oath at a hearing on March 5, 2020, Mr. Campbell stated he
had never been administered lumbar sympathetic blocks by Dr. Thymius. He also expressed
concerns over the bone scan from March 6, 2016, because the report did not reflect that he did
not have a full-body injection or the x-ray needed for comparison. He believed that Dr. Jin was
misleading in her report in that he had received complete relief when injections were
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On July 31, 2020, this Court issued a Memorandum Decision affirming the decision of
the Office of Judges dated November 16, 2018.
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administered. He described numbness, shooting pains, swelling, discoloration, throbbing, and
super-sensitivity in his left lower extremity. Mr. Campbell testified that Dr. Mukkamala did not
use the heat strip to measure the temperature in his lower extremity as he did during his first
examination years prior. Mr. Campbell stated that he walks with a cane and that his pain
medications were no longer helping him. On cross-examination, he testified that he had
undergone his last injection in 2017, prior to Dr. Mukkamala’s first Independent Medical
Evaluation.
Mr. Campbell returned to the Pain Clinic on March 6, 2020, with complaints of pain. He
was again diagnosed with complex regional pain syndrome of the lower limb, complex regional
pain syndrome type II of the left lower limb, and chronic pain syndrome. It was noted that his
request for a bone scan, peripheral cord stimulator, and nerve blocks had been denied. It was also
noted that he had undergone lumbar sympathetic plexus blocks two years prior. After receiving
a physical examination, the plan for treatment remained a DRG stimulator, peripheral nerve
stimulator, and injections.
On March 27, 2020, the claims administrator issued an Order denying the requests for a
referral to Dr. Tabit, a peripheral nerve trial, and a left lumbar sympathetic plexus block
injection. Mr. Campbell timely protested the claims administrator’s decision and argues that the
treatment requested by Dr. Deer is medically related to his compensable injury and is reasonably
required. He avers that Dr. Deer has noted his symptoms throughout his treatment records,
including pain, abnormal colorations, temperature, swelling, and lack of hair growth in the lower
left extremity.
In a Final Decision dated September 18, 2020, the Office of Judges affirmed the claims
administrator’s Order of March 27, 2020. In its Decision, the Office of Judges concluded that the
preponderance of the credible medical evidence establishes that Mr. Campbell has reached his
maximum degree of medical improvement and that the requested treatment is not reasonable or
necessary at this time. The Board of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Final Decision on December 30, 2020.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. The medical record in this case does not establish that the requested treatment
by Dr. Deer is medically necessary or reasonably required to treat Mr. Campbell’s January 24,
2014, compensable injury. Drs. Jin and Mukkamala both opined that he requires no additional
treatment for his compensable injury at this time. Accordingly, the Board of Review’s Order is
affirmed.
Affirmed.
ISSUED: March 23, 2022
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CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment
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