STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 12, 2014 

RORY L. PERRY II, CLERK 

THEODORE B. STUART, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1229	 (BOR Appeal No. 2048547) 

(Claim No. 2009090183) 

WEST VIRGINIA DIVISION OF JUVENILE SERVICES, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Theodore B. Stuart, by George Zivkovich, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. The West Virginia Division of 

Juvenile Services, by H. Dill Battle III, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 22, 2013, in 

which the Board affirmed a June 14, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 8, 2012, 

decision denying authorization for a lumbar spine MRI; an EMG of the left lower extremity; and 

the medications Vicodin, Neurontin, and Flexeril. 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. Stuart was injured on April 29, 2009, while participating in a form of pressure point 

control training. On May 21, 2009, the claims administrator held the claim compensable for 

lumbar strain, lumbosacral strain, and sacroiliac strain. Mr. Stuart has a well-documented history 

of back problems predating the April 29, 2009, compensable injury. On February 1, 2007, a 

lumbar spine MRI revealed mild to moderate degenerative spondylosis with a small annular 

fibrosis tear. A second lumbar spine MRI performed on September 29, 2007, revealed 

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degenerative disc disease with a mild bulge and annular tear at L5-S1 without a disc herniation 

or spinal stenosis, along with mild facet arthritic changes at the L5-S1 level. Another MRI 

performed on May 28, 2009, revealed facet arthritic changes at L4-5 and degenerative disc 

disease with a mild bulge and mild facet arthritic changes at L5-S1. 

Following the April 29, 2009, injury, Mr. Stuart began treating with Michael 

Shramowiat, M.D., who treated him with various medications. Dr. Shramowiat has also made 

numerous requests for authorization of diagnostic imaging. Sushil Sethi, M.D., performed an 

independent medical evaluation on August 18, 2009. He opined that the compensable soft tissue 

injuries had resolved long ago, and further opined that Mr. Stuart’s current treatment is unrelated 

to the compensable injuries. On January 15, 2010, Marsha Lee Bailey, M.D., performed an 

independent medical evaluation. She opined that Mr. Stuart’s ongoing complaints are solely the 

result of degenerative disc disease and degenerative joint disease and are unrelated to the 

compensable injuries. She further opined that additional treatment is unnecessary in relation to 

the compensable injuries and stated that Mr. Stuart’s ongoing treatment is aimed at treating 

degenerative changes unrelated to the compensable injuries. 

On October 6, 2011, Rebecca Thaxton, M.D., performed a records review and opined that 

the use of the medications Vicodin, Neurontin, and Flexeril should not be authorized in the 

instant claim, and noted that the claims administrator is not currently authorizing the use of those 

medications. On April 3, 2012, a repeat lumbar spine MRI was performed and revealed a disc 

protrusion at L5-S1 with mild facet arthropathy and minimal Grade I retrolisthesis of L5 on S1. 

On April 6, 2012, James Dauphin, M.D., performed a physician’s review. He opined that a 

request from Dr. Shramowiat for authorization of a lumbar spine MRI; an EMG of the left lower 

extremity; and the medications Vicodin, Neurontin, and Flexeril should be denied. Dr. Dauphin 

further opined that the requested medications are most likely related to treatment of degenerative 

disc disease unrelated to the compensable injury. Finally, he stated that there is no need to repeat 

an MRI on a two-year-old uncomplicated lumbar spine sprain. 

The claims administrator denied Dr. Shramowiat’s request for authorization of a lumbar 

spine MRI; EMG of the left lower extremity; and the medications Vicodin, Neurontin, and 

Flexeril on June 8, 2012. On February 9, 2013, Dr. Shramowiat was deposed. He testified that he 

requested authorization for a repeat lumbar spine MRI and EMG because Mr. Stuart complained 

of persistent leg pain. He further testified that the disc protrusion seen on the April 3, 2012, MRI 

could be the result of degenerative changes arising from the 2009 compensable injury. However, 

he went on to state that he is not certain that the 2009 compensable injury was severe enough to 

cause a progression of Mr. Stuart’s known pre-existing degenerative disc disease. 

In its Order affirming the June 8, 2012, claims administrator’s decision, the Office of 

Judges held that the preponderance of the evidence does not support the authorization of a 

lumbar spine MRI; an EMG of the left lower extremity; and the medications Vicodin, Neurontin, 

and Flexeril. Mr. Stuart disputes this finding and asserts that the evidence of record demonstrates 

that the requested medical treatment should be authorized. 

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The Office of Judges relied on the opinions of Dr. Thaxton and Dr. Bailey, who 

collectively opined that authorization of the requested lumbar spine MRI; EMG of the left lower 

extremity; and the medications Vicodin, Neurontin, and Flexeril should be denied. The Office of 

Judges also relied on Dr. Sethi’s determination that further treatment is not necessary in relation 

to the compensable injury. Additionally, the Office of Judges noted that on August 18, 2011, it 

affirmed the claims administrator’s October 16, 2009, denial of Dr. Shramowiat’s request to add 

lumbar radiculopathy as a compensable component of the claim. Also on August 18, 2011, the 

Office of Judges affirmed February 26, 2010; May 6, 2010; and March 22, 2010, claims 

administrator’s decisions denying authorization for a lumbar myelogram, physical therapy, and a 

reopening of Mr. Stuart’s claim for further consideration of temporary total disability benefits 

based on a finding that Mr. Stuart’s current condition arises from pre-existing degenerative 

changes and is unrelated to the 2009 compensable injury. The Board of Review affirmed both 

August 18, 2010, Orders of the Office of Judges on January 25, 2013, and this Court affirmed the 

Board of Review’s decision on June 11, 2014. Finally, the Office of Judges concluded that the 

requested lumbar spine MRI; EMG of the left lower extremity; and the medications Vicodin, 

Neurontin, and Flexeril do not constitute reasonable and necessary medical treatment in relation 

to the compensable soft tissue injury of April 29, 2009. The Board of Review reached the same 

reasoned conclusions in its decision of November 22, 2013. We agree with the reasoning and 

conclusions of the Board of Review. 

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: November 12, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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