STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 9, 2015 

RORY L. PERRY II, CLERK 

KATHY J. TAYLOR, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-1029 (BOR Appeal No. 2049370) 

(Claim No. 2013011004) 

WEST VIRGINIA DEPT OF CORRECTIONS 

ST. MARY’S CENTER, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Kathy J. Taylor, by Jonathan C. Bowman, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. West Virginia Department of 

Corrections St. Mary’s Center, by Lisa Warner Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 12, 2014, in 

which the Board affirmed a March 31, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 29, 2013, and 

April 30, 2013, decisions denying authorization of cervical spine surgery. 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. Taylor, a correctional officer, was injured on October 24, 2012, when she fell 

backwards on a broken chair and hit a wall. The claim was held compensable for cervical and 

lumbar sprains/strains. The employee’s and physician’s report of injury stated that the injury 

aggravated pre-existing neck pain. Ms. Taylor was treated at MedExpress from October 26, 

2012, through June 27, 2013. Treatment notes indicate that she initially reported back pain, neck 

pain, and headaches but denied numbness or weakness in her extremities. On November 3, 2012, 

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she reported continued pain in her neck as well as numbness. However, on November 15, 2012, 

she reported pain but no weakness or numbness. Ms. Taylor underwent two MRIs on her cervical 

spine which showed reversal of the normal cervical lordosis centered at C4, moderate loss of disc 

space height from C4-C7, anterior osteophyte formation from C4-C7, high grade central canal 

and moderate right foraminal stenosis at C5-6, and moderate stenosis at C6-7. 

In March of 2013, Ms. Taylor was referred to PARS Neurological Associates for surgical 

consultation. She was diagnosed with neck pain, herniated cervical disc, spinal stenosis in the 

cervical region, and spondylolisthesis. Rammy Gold, M.D., recommended cervical surgery 

because of the high risk of spinal cord injury due to severe stenosis. The claims administrator 

denied the request on April 30, 2013. On May 6, 2012, Christopher Martin, M.D., performed a 

record review in which he opined that Ms. Taylor sustained a cervical sprain as a result of the 

compensable injury. He stated that she did not experience a herniated cervical disc, spinal 

stenosis, or spondylolisthesis as a result of the injury. The findings seen on the MRIs were 

determined to be age-related degenerative findings. He stated that the MRIs note spurs, which 

are bony overgrowths that could not have arisen in the short time period of less than three 

months between the injury and the first MRI. Further, the fact that she has multilevel findings 

which are extensive and involve multiple joints in the cervical spine is consistent with 

degenerative changes. He stated that surgery may be indicated if an EMG shows that her 

symptoms are the result of her structure changes; however, neither the EMG nor the requested 

surgery are medically related to the compensable injury. Shortly thereafter, Dr. Gold opined in a 

medical statement that the claimant required surgery for her cervical spine. He stated that she 

was at high risk of spinal cord injury due to severe stenosis. The claims administrator again 

denied his request for authorization of cervical surgery on May 29, 2013. 

Bruce Guberman, M.D., performed a record review on July 24, 2013, in which he opined 

that Ms. Taylor sustained a cervical sprain/strain and a disc injury due to the work-related injury. 

He found that she had underlying degenerative changes which were not symptomatic prior to the 

compensable injury but became symptomatic as a result of the injury. He therefore concluded 

that her current symptoms and need for surgery are related to the compensable injury. He further 

stated that she would not have symptoms, impairment, or the need for surgery if not for the 

work-related accident. Dr. Martin stated in a February 19, 2014, addendum that after reviewing 

additional records, he still believed that the findings seen on MRIs of the cervical spine are 

unrelated to the compensable injury. He opined that the requested surgery cannot be related to 

the work-related injury. He found no consistent documentation of neurological abnormalities. He 

stated that the mechanism of injury was relatively mild. He asserted that Dr. Gold, who requested 

the surgery, consistently states it is necessary for spinal stenosis. He opined that Ms. Taylor 

likely sustained a chronic cervical strain as the result of the compensable injury which should be 

managed with conservative treatment, not surgery. 

The Office of Judges affirmed the claims administrator’s decisions in its March 31, 2014, 

Order. It found that a preponderance of the evidence failed to show that the surgery was 

reasonably related and medically necessary to treat the work-related injury. It determined that 

Ms. Taylor did not experience significant neurological symptoms until three to four months after 

the injury occurred. An MRI showed very significant degenerative changes. The Office of 

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Judges stated that it is undisputed that the degenerative changes were pre-existing and very 

serious in nature. It determined that it was unlikely that the cervical surgery was necessary to 

treat the relatively minor compensable injury. It was noted that Dr. Gold, who recommended the 

surgery, stated that it was necessary for significant stenosis. The Office of Judges found that 

stenosis is narrowing of the spinal canal and is entirely the result of degenerative changes. The 

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

affirmed its Order on September 12, 2014. 

On appeal, Ms. Taylor argues that the record does not show neurological symptoms until 

months after the compensable injury because she was unable to obtain treatment until that time 

due to the claims administrator’s delay in rendering a decision on the compensability of her 

injury. She further asserts that her pre-existing degenerative changes do not preclude treatment 

for a work-related injury. The West Virginia Department of Corrections St. Mary’s Center 

argues that the requested surgery is unrelated to the compensable injury and the requesting 

physician, Dr. Gold, even stated that he was not sure if the surgery was necessary to treat the 

compensable injury or pre-existing degenerative changes. It further asserts that Dr. Guberman’s 

opinion that the surgery was related to the compensable injury is not reliable as he was unaware 

of Ms. Taylor’s pre-injury pain management treatment. 

After review, we agree with the reasoning of the Office of Judges and the conclusions of 

the Board of Review. The only compensable cervical injury in the claim is a sprain/strain. The 

surgery was requested to treat severe spinal stenosis, a non-compensable condition caused by 

pre-existing degenerative changes. Although Ms. Taylor may require cervical spine surgery, the 

surgery is not reasonably related or medically necessary to treat the compensable injury. 

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: July 9, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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