STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

GENE FOWLER JR., FILED 

Claimant Below, Petitioner October 10, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs.) No. 16-1188 (BOR Appeal No. 2051419) OF WEST VIRGINIA 

(Claim No. 2013011188) 

BRAND SERVICES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Gene Fowler Jr., by George Zivkovich, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review 

The issue on appeal is authorization for medical treatment. On August 31, 2015, the 

claims administrator denied a request for retro authorization of lumbar surgery performed by 

Rammy Gold, M.D., on July 15, 2015. On January 6, 2016, the claims administrator denied retro 

authorization of an MRI, shots, and post-surgical physical therapy recommended by Dr. Gold. 

The Office of Judges affirmed both decisions of the claims administrator in its June 28, 2016, 

Order. The Order was by affirmed by the Board of Review on November 28, 2016. 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. Fowler, a carpenter, was injured on October 24, 2012, while he was flipping crane 

pads that weighed approximately 150 pounds. On December 6, 2013, the Office of Judges held 

the claim compensable for a thoracic sprain/strain and a lumbar sprain/strain.1 A March 27, 

2015, lumbar MRI revealed lumbar L3-L4 chronic marked discogenic spondylosis with mild 

listhesis, moderate facet arthropathy with mild central canal stenosis, and mild left foraminal 

narrowing with minimal disc bulges at L1-L2 and L2-L3. There were no changes since the 

1 The CA decisions regarding compensability were not included in the record. 

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February 8, 2014, lumbar spine MRI. Mr. Fowler had a series of epidural steroid injections 

beginning on April 20, 2015, and ending on June 8, 2015. 

On June 10, 2015, Mr. Fowler was seen by Melissa R. Comer, PA-C at PARS 

Neurosurgical Associates Inc. He was diagnosed with low back pain, degeneration of lumbar 

intervertebral disc, and lumbosacral neuritis and radiculopathy. Ms. Comer noted Dr. Gold had 

previously recommended a lumbar fusion and Mr. Fowler was ready to proceed with the surgery. 

On July 15, 2015, Dr. Gold performed a left L3-L4 transforaminal lumbar interbody fusion. 

The claims administrator denied Dr. Gold’s request for retro-authorization of the lumbar 

fusion surgery on August 31, 2015. On January 6, 2016, the claims administrator denied Dr. 

Gold’s request for retro-authorization of an MRI, shots, and post-surgical physical therapy.2 

The Office of Judges affirmed the decisions of the claims administrator on June 28, 2016. 

It noted the claim was held compensable for lumbar and thoracic sprains/strains. According to 

West Virginia Code of State Rules §85-20 (2006) , the estimated duration of care for a lumbar 

and/or thoracic sprain/strain was not to exceed eight weeks. The retro- authorization of the MRI, 

shots, lumbar surgery and post-surgery physical therapy requests would be inappropriate under 

West Virginia Code of State Rules §85-20 because they were beyond the estimated timeframe 

for treatment of a lumbar or thoracic sprain/strain. The OOJ noted the claimant had not 

established that treatment in excess of West Virginia Code of State Rules §85-20 was reasonable 

and necessary. 

Moreover, the Office of Judges found that a preponderance of the medical evidence 

showed the denial of the medical treatment should be affirmed as the treatment was not 

reasonable and necessary for the effects of the compensable injury. The pre-operative diagnosis 

for the lumbar surgery was intractable lumbar radiculopathy and the discharge diagnosis was 

lumbar stenosis. Neither of those diagnoses had been held compensable in this claim. The shots 

were for the non-compensable diagnoses of lumbar radiculitis, lumbar radiculopathy, lumbar 

spondylosis, and low back pain. The Office of Judges determined the requested treatment was 

more than likely needed for Mr. Fowler’s degenerative disc disease and/or the L3-L4 disc level, 

both of which pre-existed the claim and neither of which been found compensable. 

The Board of Review affirmed the Office of Judges on November 28, 2016. In Gene 

Fowler, Jr. V. Brand Services, Inc. No. 16-0171 (W.Va. Supreme Court, February 3, 

2017)(memorandum decision), we affirmed the denial of a request for payment of additional 

TTD benefits, affirmed the denial of a request to add low back pain, lumbar radiculitis, and 

stenosis as compensable conditions, and affirmed the denial of authorization for referral to Dr. 

Gold. In light of that decision, the Board of Review’s decision must be affirmed. The requests 

for retro-authorizations relate to treatment of conditions that have been determined to be noncompensable. 

2 A copy of the request made by Dr. Gold was not included in the record. However, it appears that the shots referred 

to is the series of epidural steroid injections. 

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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: October 10, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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