STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 27, 2014 

RORY L. PERRY II, CLERK 

CHARLES BRAUTIGAM, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0232 (BOR Appeal No. 2047391) 

(Claim No. 2010098207) 

PERSONNEL TEMPORARY SERVICES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Charles Brautigam, by William Gallagher, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Personnel Temporary Services, 

Inc., by Lucinda Fluharty, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 18, 2013, in 

which the Board affirmed a June 11, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 25, 2012, 

decision which denied authorization for orthopedic and neurosurgical referrals. 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. 

Mr. Brautigam, a temporary worker, was injured during the course of his employment on 

July 10, 2009, when a machine fell on him. His claim was held compensable for shoulder/arm 

sprain/strain, lumbar sprain/strain, abrasion, and contusion of multiple sites. In a treatment note 

dated October 8, 2009, Mark Fye, M.D., found that Mr. Brautigam had undergone physical 

therapy that had helped his pain a great deal. It was noted that an MRI showed a mild L5-S1 disc 

herniation. Dr. Fye determined that the herniated disc pre-existed the work-related injury and Mr. 

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Brautigam merely sustained a soft tissue/contusion type of injury in the course of his 

employment. 

Mr. Brautigam underwent an independent medical evaluation by Gabriel Sella, M.D., in 

May of 2011. In that evaluation, Dr. Sella found that there was pain in the right shoulder as well 

as mild loss of strength. He was unable to determine if the compensable diagnoses were correct 

and stated that a neurosurgical consultation would be necessary for the lumbar spine and an 

orthopedic consultation would be necessary for the right shoulder to determine if the 

compensable diagnoses were correct. Sushil Sethi, M.D., disagreed in an independent medical 

evaluation in June of 2011. Dr. Sethi found that Mr. Brautigam had already exhausted multiple 

courses of treatment and that his conditions had stabilized long ago. He determined that Dr. 

Sella’s independent medical evaluation was difficult to understand because he failed to answer 

the questions asked. He concluded that Dr. Sella failed to make any specific recommendations. 

Dr. Sethi opined that Mr. Brautigam’s right shoulder condition had resolved and there were very 

minimal findings in the lumbar area. Mr. Brautigam was found to be at maximum medical 

improvement and capable of returning to work. No further treatment was recommended. Dr. 

Sethi assessed 5% lumbar spine impairment and 0% right shoulder impairment. The treatment 

rendered to date was found to be excessive. 

Rebecca Thaxton, M.D., performed a physician review on December 20, 2011, in which 

she determined that the requested referrals should be denied because they were unnecessary. She 

noted that Dr. Fye determined that the herniated disc was not work-related and Dr. Sethi 

performed a detailed examination of the right shoulder with range of motion measurements and 

found that Mr. Brautigam had sustained no permanent impairment. The claims administrator 

denied a request for orthopedic and neurosurgical referrals on January 25, 2012. 

The Office of Judges affirmed the claims administrator’s decision in its June 11, 2012, 

Order. It found that Dr. Sella made the recommendation for referrals without reviewing Mr. 

Brautigam’s medical records or the history of the case. A lumbar MRI taken shortly after the 

injury was reviewed by Dr. Fye, an orthopedic surgeon. He found that the herniated L5-S1 disc 

pre-existed the compensable injury and that surgery would not resolve the problem. At that time, 

Dr. Fye noted that there was no radiation of pain into the lower extremities. Dr. Sella also noted 

that Mr. Brautigam did not have radiculopathy. Therefore, the Office of Judges found it 

questionable why Dr. Sella felt the need for a neurosurgical consultation. 

The Office of Judges found that Peter Gerszten, M.D., stated in January of 2012 that Mr. 

Brautigam was experiencing pain in his back and tingling in his left leg. Dr. Gerszten opined that 

the pain was due to the L5-S1 disc herniation. However, the Office of Judges found that the disc 

herniation was discovered shortly after the injury in 2009 and has never been accepted as a 

compensable component of the claim. In regards to the right shoulder injury, though Dr. Sella 

noted pain and decreased strength, Dr. Sethi found no impairment for the right shoulder. He 

found that Mr. Brautigam was at maximum medical improvement for both the right shoulder and 

the lumbar spine. The Office of Judges determined that though Dr. Thaxton incorrectly stated 

that Dr. Fye was a neurosurgeon, that error only minimally detracted from her opinion that the 

requested referrals should be denied. 

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The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its January 18, 2013, decision. This Court agrees with the 

decision of the Board of Review. Neither herniated lumbar disc nor radiculopathy are 

compensable components of the claim, and Mr. Brautigam was found to be at maximum medical 

improvement in June of 2011 for the compensable lumbar spine and right shoulder 

sprains/strains. Therefore, the requested consultations are not reasonably required or medically 

necessary for the treatment or evaluation of the compensable conditions in this claim. 

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: June 27, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

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