STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 13, 2013 

RORY L. PERRY II, CLERK 

SHERRY CARROLL, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0369	 (BOR Appeal No. 2046362) 

(Claim No. 2010106749) 

CARDINAL HEALTH 110, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Sherry Carroll, by M. Jane Glauser, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Cardinal Health 110, Inc., by Sean 

Harter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 22, 2012, in 

which the Board affirmed an August 19, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed four claims administrator’s decisions. The 

November 29, 2010, decision closed the claim on a temporary total disability benefits basis. The 

January 5, 2011, decision denied a request for authorization for a referral to Dr. El-Kadi and a 

referral to Dr. Sakla. The March 25, 2011, decision denied authorization for rehabilitation 

services. Finally, the March 25, 2011, decision denied a request for the medication Lyrica, a 

referral to a rheumatologist for fibromyalgia, a full cervical MRI, and a referral to Dr. El-Kadi. 

The Order of the Office of Judges affirmed each of the four claims administrator’s decisions. 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. Carroll was a warehouse worker for Cardinal Health 110, Inc. On August 25, 2009, 

Ms. Carroll injured her right shoulder, neck, and right side while lifting a tote onto a conveyor 

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belt. Her claim was initially held compensable for a right shoulder sprain but the claims 

administrator subsequently added the diagnoses of right trapezius strain, right cervical strain, and 

thoracic spine strain as compensable conditions of the claim. Ms. Carroll received various 

treatments and services on this claim including cervical epidural steroid injections. Ms. Carroll 

was primarily treated by Dr. Kovalick who consistently found that Ms. Carroll was temporarily 

and totally disabled. But on October 21, 2010, Dr. Grady performed an independent medical 

evaluation on Ms. Carroll. Dr. Grady found that Ms. Carroll had cervical steroid injections on a 

couple of occasions without any significant improvement. Dr. Grady found that Ms. Carroll had 

reached the maximum degree of medical improvement with respect to the compensable 

conditions of this claim. Dr. Grady stated that additional physical therapy, injections, or invasive 

treatment would not significantly alleviate her symptoms. Dr. Grady did opine that non-steroidal 

anti-inflammatory medication would be reasonable to treat her compensable injuries. 

Despite Dr. Grady’s findings, Dr. Kovalick found that Ms. Carroll continued to 

experience pain and suspected that she may have fibromyalgia. Dr. Kovalick then made a series 

of requests for authorization for additional treatment. On November 29, 2010, the claims 

administrator closed the claim for temporary total disability benefits based on Dr. Grady’s report. 

On January 5, 2011, the claims administrator denied a request for authorization for a referral to 

Dr. El-Kadi, a neurosurgeon, and a referral to Dr. Sakla, for a series of trigger point injections. 

On March 25, 2011, the claims administrator denied a request for authorization for rehabilitation 

services. Finally, on March 25, 2011, the claims administrator denied a request for the 

medication Lyrica, a referral to a rheumatologist for fibromyalgia, a full service MRI, and a 

referral to Dr. El-Kadi. Following these decisions, Dr. Hennessey performed an independent 

medical evaluation on Ms. Carroll and found no evidence of residual impairment from her injury. 

Dr. Hennessey also found that Ms. Carroll had reached the maximum degree of medical 

improvement relating to her August 25, 2009, injury. On August 19, 2011, the Office of Judges 

affirmed the November 29, 2010, January 5, 2011, and both March 25, 2011, claims 

administrator decisions. The Board of Review then affirmed the Order of the Office of Judges on 

February 22, 2012, leading Ms. Carroll to appeal. 

The Office of Judges concluded that Ms. Carroll was not entitled to further consideration 

for temporary total disability benefits. The Office of Judges also concluded that Ms. Carroll was 

not entitled to an MRI, trigger point injections, the medication Lyrica, or any further treatment, 

evaluations, or rehabilitation services in relation to this claim. The Office of Judges found that 

both Dr. Grady and Dr. Hennessey had found that Ms. Carroll had reached the maximum degree 

of medical improvement with respect to the compensable conditions of the claim. The Office of 

Judges found that even Ms. Carroll’s treating physician, Dr. Kovalick, did not relate the 

requested treatments to a compensable condition of the claim but instead attributed Ms. Carroll’s 

continuing pain to fibromyalgia. The Office of Judges found that there was no evidence in the 

record which causally related this condition to Ms. Carroll’s compensable strain injuries. The 

Board of Review adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the conclusions of the Board of Review and the findings of the Office of 

Judges. Ms. Carroll was deemed to have reached the maximum degree of medical improvement 

with respect to her compensable injuries and her claim was properly closed for temporary total 

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disability benefits. Ms. Carroll has not presented sufficient evidence to demonstrate that she 

continues to be temporarily and totally disabled. Ms. Carroll has also not demonstrated that the 

requested treatments and services are reasonably related and medically necessary to treat a 

compensable condition of the claim. Dr. Grady believed that Ms. Carroll would not derive 

significant benefit from any additional injections, physical therapy, or invasive procedures. Dr. 

Grady’s opinion is reflected in the record as a whole. The evidence in the record indicates that 

Ms. Carroll’s continuing symptoms relate to fibromyalgia, which is an unrelated and noncompensable condition. 

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 13, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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