STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

WEST VIRGINIA UNITED HEALTH SYSTEMS, May 21, 2018 

EDYTHE NASH GAISER, CLERK Employer Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 18-0005 (BOR Appeal No. 2052120) 

 (Claim No. 2016020454) 

TAMMY PRICE, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner, West Virginia United Health Systems by Jeffrey M. Carder, its attorney, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review. Tammy 

Price, by Robert L. Stultz, its attorney, filed a timely response. 

The issue on appeal is the compensability of additional diagnoses and medical treatment. 

On February 21, 2017, the claims administrator denied a request to add thoracic strain and 

sacroiliac sprain as compensable components of the claim. The claims administrator also denied 

payment for a bill from WVU Medical Corporation for a date of service of December 19, 2016, 

in a separate February 21, 2017, decision. The Office of Judges affirmed both of the decisions in 

its July 21, 2017, Order. The Order was reversed and vacated by the Board of Review on 

November 30, 2017. 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. Price, a nursing assistant, was injured on February 5, 2016, when she slipped on a 

mat at work. Her claim was held compensable for a low back sprain/strain on February 17, 2016. 

Prior to her work injury, Ms. Price had been treated by Robert Gerbo, M.D., for six months in 

2009 for low back pain during which time Dr. Gerbo noted that lumbar x-rays showed loss of 

lordotic curvature. A December 9, 2009, lumbar MRI revealed degenerated L5-S1 intervertebral 

disc with a small midline herniation associated with mild extradural mass effect with no neural 

foraminal encroachment. In June of 2015, Ms. Price was treated by Michal Matela, M.D., for a 

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chief complaint of lower back pain. Dr. Matela diagnosed muscle spasm of the back and back 

pain. 

After the February 5, 2016, injury, Dr. Gerbo treated Ms. Price for a chief complaint of 

low back pain. On March 1, 2016, Dr. Gerbo noted the lower part of Ms. Price’s back was 

improved, but the part inferior to her bra line was still problematic. She had resumed modified 

duty. After she was released to full duty work on March 11, 2016, Dr. Gerbo noted Ms. Price’s 

pain was worse in the left thoracolumbar area, but she also had pain in the left lower lumbar area. 

Dr. Gerbo diagnosed lumbar/thoracic back sprain which was worse without any precipitating 

event. He noted the main area of concern was the lower thoracic/upper lumbar area and opined it 

was related to her work injury. A March 25, 2016, thoraco-lumbar spine MRI was unremarkable 

with no evidence of acute fracture or compression deformity. Mild disc desiccation at T9-T10. 

Bill Hennessey, M.D., performed an independent medical evaluation on June 9, 2016. 

He noted Ms. Price reported no relief of her symptoms since the work injury. On examination, 

Ms. Price had pain to palpation in her left lumbar paraspinal muscles and in her left lower 

thoracic paraspinal muscles. The pain limited her from going through a full range of motion, and 

she had pain with trunk flexion and extension. Dr. Hennessey noted Ms. Price’s straight leg raise 

testing was negative bilaterally. Dr. Hennessey determined that the subjective pain complaints 

were not supported by the objective medical evidence. He opined that there was insufficient 

medical evidence of residual left lumbar strain. In Dr. Hennessey’s opinion, Ms. Price had 

reached maximum medical improvement from the February 5, 2016, soft tissue strain. He opined 

that there was no further need for medical treatment because there was no residual physical 

impairment on which to base treatment. Also, there was no need to keep doing what did not 

work. Dr. Hennessey assessed 0% impairment. 

Dr. Gerbo continued to treat Ms. Price in July of 2016.On July 12, 2016he saw Ms. Price 

for left-sided low back pain. She reported having received trigger point injections on June 13, 

2016, and she no longer had any thoracic or lumbar pain. Dr. Hennessey diagnosed thoracolumbar and lower lumbar sprains, much improved. Ms. Price continued to have left SI pain and 

tenderness. In a letter dated July 26, 2016, Dr. Gerbo noted Ms. Price had returned to his office 

for treatment sooner than expected with a chief complaint of worse back pain. On July 20, 2016, 

Ms. Price felt a “pop” in the thoraco-lumbar spine while doing a compression on a mannequin 

during CPR training. She also experienced an increase in left sacroiliac pain. Ms. Price reported 

pain radiation to the posterior thighs and tingling in both feet. On examination, Ms. Price had 

limited range of motion of the thoracic and lumbar spine. Dr. Gerbo diagnosed thoracic sprain 

and strain, lumbar strain, and sacroiliac sprain. He opined this was not a new injury but a 

worsening of Ms. Price’s previous condition. Dr. Gerbo opined that the claim needed to be 

reopened for physical therapy. Ms. Price was also seeking treatment with a pain management 

physician. 

Ms. Price testified via deposition on January 12, 2017, that she worked in perioperative 

care which required her to push beds, gurneys, and wheelchairs; take vital signs; and do a lot of 

walking in order to move patients from place to place. She was injured on February 5, 2016, 

when she was pulling a mat next to a desk and tweaked her body. She aggravated her back on 

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July 20, 2016, when she was doing CPR training. She has been off of work since July 22, 2016. 

Between February and July of 2016, she was only able to work light duty and she still 

experienced exacerbations of her pain. She continued to have pain in her mid and lower left side. 

On February 21, 2017, the claims administrator denied Dr. Gerbo’s request to add lumbar 

strain, thoracic strain, and sacroiliac sprain as compensable components of the claim because Ms. 

Price suffered a new isolated fortuitous event on July 20, 2016, which resulted in the need for 

treatment and the addition of the new diagnoses. In a separate decision on February 21, 2017, the 

claims administrator denied a request for payment for a bill from WVU Medical Corporation for 

a date of service of December 19, 2016, as the bill related to the new injury of July 20, 2016. 

The Office of Judges affirmed the claims administrator’s decisions in its July 21, 2017, 

Order. It found West Virginia United Health Systems’ argument that Ms. Price suffered a 

subsequent intervening injury in a completely different area of her back to be persuasive. The 

Office of Judges found that no evidence of a lumbar spine problem was seen on the March 11, 

2016, x-ray. Additionally, the March 25, 2011, MRI was unremarkable for the thoraco-lumbar 

spine. Ms. Price was determined to be at maximum medical improvement prior to the July 20, 

2016, injury. Moreover, Dr. Gerbo noted Ms. Price’s pain in her thoracic and lumbar regions had 

resolved as of July 12, 2016. It determined that the additional diagnoses and December 19, 2016, 

medical treatment were not causally related to the compensable injury. 

On November 30, 2017, the Board of Review reversed and vacated the Office of Judge’s 

July 21, 2017, Order. It found that the analysis and conclusions of the Office of Judges was 

wrong in light of the evidence. The Board of Review noted the February 5, 2016, injury was held 

compensable for a low back sprain/strain. Dr. Gerbo found the lower part of the back improved 

on March 1, 2016, but found the part around the bra line was still problematic and diagnosed 

lumbar/thoracic back sprain, which was worse without any precipitating event. The Board of 

Review found that the Office of Judges substituted its opinion for the opinion of the medical 

expert. Dr. Gerbo treated Ms. Price before and after she participated in the CPR training event. It 

found Ms. Price experienced a worsening of her symptoms during the CPR training, but she did 

not suffer an intervening injury to completely different areas of her back. Therefore, the Board of 

Review granted Ms. Price’s request for lumbar strain, thoracic strain, and sacroiliac sprain to be 

held compensable components of the claim. It also granted Ms. Price’s request for payment of 

the December 19, 2016, medical bill. 

After review, we agree with the reasoning and conclusions of the Board of Review. The 

Ms. Price continued to experience symptoms related to the February 5, 2016, injury as late as 

June 13, 2016, when she received trigger point injections. Additionally, Dr. Gerbo documented 

thoracic pain in March of 2016. Therefore, the Board of Review did not err when it found Ms. 

Price’s lumbar strain, thoracic strain, and sacroiliac sprain compensable. As these conditions are 

compensable so is the medical treatment received on December 19, 2016. 

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 

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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: May 21, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Justice Elizabeth D. Walker, disqualified 

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