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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

KENNETH VIOLET,

Claimant Below, Petitioner

vs.) No. 19-0156 (BOR Appeal No. 2053151)

(Claim No. 2017019461)

 

CENTRE FOUNDRY & MACHINE, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Kenneth Violet, by counsel Patrick K. Maroney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). Centre Foundry & 

Machine, by counsel Alyssa A. Sloan, filed a timely response.

The issues on appeal are whether Mr. Violet is entitled to add lumbar radiculopathy, lumbar 

biomechanical lesions, lumbar spondylosis, and other specific arthropathy as compensable 

conditions in the claim. Mr. Violet also requested medical treatment and additional temporary total 

disability benefits. On January 23, 2018, the claims administrator issued an Order which, in part, 

denied the authorization for a change of a physician for Mr. Violet. On January 25, 2018, the 

claims administrator closed the claim for temporary total disability benefits. The Workers’ 

Compensation Office of Judges (“Office of Judges”) issued a final decision dated June 29, 2019, 

affirming both decisions of the claims administrator. This appeal arises from the Board of 

Review’s Order dated January 28, 2019, in which the Board affirmed final decision of the Office 

of Judges. 

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. 

On February 4, 2017, Mr. Violet completed a report of injury form indicating that he 

injured his left lower hip and leg while lifting chains on February 3, 2017, while working for 

Centre Foundry & Machine. He sought treatment at Wheeling Hospital with complaints of back 

pain. He was diagnosed with sciatica and lumbar strain. A CT scan of the lumbar spine showed 

FILED

February 19, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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middle left foraminal stenosis at L4-5 and a non-acute appearing left-sided pars defect at L5, with 

no spondylolisthesis resulting.1 Mr. Violet returned to Wheeling Hospital on February 6, 2017, 

with complaints of left hip pain radiating down the left buttocks and leg, as well as numbness in 

the foot. He was again diagnosed with sciatica, and he was referred to Corporate Health for 

treatment. An x-ray taken of his pelvis and hip, was essentially normal.

Mr. Violet began treatment with Ross Tennant, FNP, at Corporate Health on February 7, 

2017. He was diagnosed with an acute lumbar strain with radiculopathy. Mr. Ross took Mr. Violet 

off of work and the claim was ruled compensable on February 9, 2017, for lumbar strain. An MRI 

of the lumbar spine on February 11, 2017, showed unilateral pars interarticularis defect on the left 

at L5-S1, without spondylolisthesis, as well as right foraminal stenosis at L3-4 and left foraminal 

stenosis at L4-5 due to disc bulging. The MRI also showed spurring and facet arthropathy with 

right foraminal protrusion at L4 and L3, with left foraminal protrusion at L4-L5. Mr. Violet 

returned to Mr. Tennant on March 17, 2017, at which time Mr. Tennant indicated that he could 

return to his previous employment with restrictions as of March 17, 2017. An EMG performed 

on March 21, 2017 showed chronic left L5 radiculopathy of the left lower extremity.

Mr. Violet was seen by John Levy, M.D., at Greater Pittsburgh Orthopedic Associates on 

April 5, 2017. Dr. Levy diagnosed Mr. Violet with lumbar strain with radicular symptoms, 

although he noted that the symptoms are not in a true radicular pattern. He stated that Mr. Violet’s 

EMG was positive for L5 radiculopathy; however, his examination was not consistent with lumbar 

radiculopathy. Dr. Levy opined that he could do sedentary work. Mr. Violet returned to see Dr. 

Levy on May 12, 2017, at which time he expressed that he planned to get a second opinion. 

Mr. Violet saw Ronald Hargraves, M.D., on June 6, 2017, at which time Dr. Hargraves 

noted that his symptoms are primarily due to the left L5 pars defect. On a Diagnosis Update form, 

Dr. Hargraves indicated that the diagnoses included lumbar pars defect, neuralforaminal stenosis, 

and lumbar facet arthropathy. Dr. Hargraves sent a letter to the claims administrator on June 16, 

2017, regarding the office visit. He recommended continued physical therapy and an evaluation at 

the West Virginia University Pain Clinic. Dr. Hargraves found Mr. Violet’s L5 pars defect to be 

non-acute. The claims administrator withheld the request from Dr. Hargraves to add the diagnoses 

of lumbar pars defect, neuroforaminal stenosis, and lumbar facet arthropathy on June 29, 2017.

On July 14, 2017, Dr. Stoll completed a Physician Review regarding the additional 

conditions and indicated that Mr. Violet has pre-existing degenerative spondylosis, as well as a L5 

pars defect, that is chronic in nature. Dr. Stoll stated that the requested conditions are not related 

to the lumbar strain and that the ongoing treatment of Mr. Violet’s lumbar spine would be for 

treatment of the pre-existing lumbar spondylosis and L5 pars defect. Following Dr. Stoll’s

assessment, the claims administrator denied the request to add lumbar pars defect, neuroforaminal 

stenosis and lumbar facet arthropathy to the claim on July 27, 2017. Mr. Violet grieved the decision 

and the Grievance Board recommended that the decision be affirmed on August 22, 2017. The 

1 A pars defect is defined as a defect of stress fracture in the pars interarticularias of the 

vertebral arch, which is a segment of the vertebrae that makes up the arch surrounding the spinal 

cord. 
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claims administrator affirmed the decision on August 23, 2017, and Mr. Violet protested the claims 

administrator’s decision. 

An Allegiant Managed Care report was completed on August 30, 2017, at which time the 

evaluator noted that Mr. Violet was released to return to work on March 17, 2017. He returned to 

work on March 20, 2017, but was laid off on July7, 2017, which was unrelated to his work-related 

injury. The claims administrator withheld authorization for a referral to Dr. Hargraves on 

September 29, 2017, pending the receipt of an independent medical evaluation report. On October 

10, 2017, Rebecca Thaxton, M.D., completed a Physician Review not recommending that Mr. 

Violet is sent for a re-evaluation with a neurosurgeon as his lumbar radiculopathy and lumbar 

neuroforaminal stenosis are not related to the compensable condition in the claim. 

Mr. Violet was seen by Jonathan Pratt, M.D., on October 23, 2017. Dr. Pratt requested that 

lumbar radiculopathy, other biomechanical lesions of lumbar region, spondylosis of the lumbar 

region, and other specific arthropathies, be added as compensable conditions in the claim. At the 

request of the claims administrator, Mr. Violet underwent an independent medical evaluation with 

Scott Rainey, M.D., on November 13, 2017. Dr. Rainey indicated that Mr. Violet complained of 

sharp stabbing pain in his low back at the beltline, which travels into his left posterior buttock and 

down into his posterior thigh. Dr. Rainey diagnosed him with a simple strain of the muscle fascia 

and tendon of the low back. He noted that this is the appropriate allowable diagnosis as related to 

the mechanism of injury described by Mr. Violet and is consistent with this diagnosis as well as 

the onset of symptoms with regard to low back pain. Dr. Rainey found him to be at maximum 

medical improvement in regard to this condition and that he would be able to return to his preinjury job without restrictions. Dr. Rainey indicated that the reported low back pain is consistent 

with the pre-existing degenerative changes. The symptoms traveling through Mr. Violet’s left leg 

fit the nerve irritation and the EMG nerve conduction studies have been provided, which indicate 

chronic L5 radiculopathy of the left lower extremity. He also noted that the MRI of the lumbar 

spine demonstrates a unilateral pars defect on the left at L5-S1, as well as left-sided foraminal 

stenosis at L4-L5. He noted that these findings are indicative of degenerative changes through Mr. 

Violet’s lumbar spine and would have pre-dated the work injury of February 3, 2017. Dr. Rainey 

found him to be at maximum medical improvement in regard to his lower back strain with no 

impairment rating. 

On December 6, 2017, Mr. Violet requested authorization to change physicians to Dr. 

Hargraves. On December 14, 2017, Dr. Thaxton reviewed Dr. Rainey’s independent medical 

evaluation report and found that the 0% whole person impairment rating is supported by the 

medical findings and that lumbar radiculopathy should not be added as a compensable condition 

in the claim. On December 15, 2017, the claims administrator denied the request to change 

physicians to Dr. Hargraves, as Dr. Hargraves declined to be a treating physician of record in 

workers’ compensation claims. Dr. Hargraves is a neurosurgeon affiliated with West Virginia 

University working in Wheeling, West Virginia and does not usually act as a treating physician in 

workers’ compensation claims. On December 18, 2017, the claims administrator closed the claim 

for permanent partial disability benefits and awarded no impairment. In a separate Order, on 

December 18, 2017, the claims administrator denied the addition of lumbar radiculopathy, lumbar 
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biomechanical lesion, spondylosis lumbar region, and other specific arthropathy, based on Dr. 

Rainey’s report. Mr. Violet protested the claims administrator’s Orders. 

On December 19, 2017, Mr. Violet saw Mr. Tennant who agreed that he had reached his 

maximum medical improvement in regard to his work-related injury of lumbar strain. He was 

released back to work with no restrictions. As a result, the claims administrator suspended 

temporary total disability benefits on December 30, 2017. On December 21, 2017, Allegiant 

completed a closure report noting that Mr. Violet obtained a full duty work release in regard to his 

occupational injury. The Grievance Board, on January 17, 2018, found that the denial of the lumbar 

radiculopathy, lumbar biomechanical lesions, lumbar spondylosis, and other specific 

arthropathies, as well as the denial of the change of physician to Dr. Hargraves should be affirmed. 

On January 23, 2018, the claims administrator entered an Order affirming the denial of the 

secondary conditions and also affirmed the denial of the change of physician to Dr. Hargraves. Mr. 

Violet protested the decision. Additionally, on January 25, 2018, the claims administrator closed 

the claim for the payment of temporary total disability benefits as appropriate medical evidence 

did not support the continued payment of the benefits because Mr. Violet had been found to be at 

maximum medical improvement. 

During his March 8, 2018, deposition, Mr. Violet testified that he injured his low back on 

February 3, 2017, when pulling on a heavy chain while working as a hookup. He testified that he 

had no prior pain or problems, but he did have previous workers’ compensation low back strain. 

Although he was released to work by Mr. Tennant on December 19, 2017, Mr. Violet testified that 

he believes this was a mistake. He also indicated that he has not worked at full duty since being 

released to work by Mr. Tennant. Mr. Violet testified that he would like to continue treating with 

Dr. Hargraves, but he has treated with him only one time. 

In a Final Decision dated June 29, 2018, the Office of Judges affirmed the claims 

administrator’s Orders dated January 23, 2018, and January 25, 2018. The Office of Judges 

affirmed the denial of additional components of the claim and determined that the claim was 

properly closed for temporary total disability benefits when Mr. Violet reached his maximum 

medical improvement. It was also found that the claims administrator’s denial of a change of 

physicians to Dr. Hargraves was proper because it is more likely than not that he does not act as a 

treating physician in workers’ compensation claims. On January 28, 2019, the Board of Review 

adopted the findings of fact and conclusions of law of the Office of Judges and affirmed the 

decision. 

After review, we agree with the conclusions of the Office of Judges, as affirmed by the 

Board of Review. The medical records do not support a finding that the requested conditions, 

including lumbar radiculopathy, lumbar biomechanical lesions, lumbar spondylosis and other 

arthropathies, are related to the compensable injury of February 3, 2017. Dr. Rainey, Dr. Stoll, and 

Dr. Thaxton all opined that the pain that Mr. Violet reports in his low back is consistent with his 

pre-existing degenerative changes and not related to the compensable lumbar strain. The Office of 

Judges correctly determined that the claim was properly closed when Mr. Violet reached his 

maximum degree of medical improvement by Dr. Rainey on November 13, 2017. Additionally, 
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Mr. Violet’s treating provider, Mr. Tennant, released him to return to work on December 19, 2017. 

West Virginia Code § 23-4-7a(c) provides that the claims administrator shall suspend the payment 

of temporary total disability benefits upon a finding that the claimant has reached maximum 

medical improvement by an evaluating physician. The claims administrator properly closed the 

claim for the payment of temporary total disability benefit on January 25, 2018. The Office of 

Judges also correctly affirmed the denial of Mr. Violet’s request to change treating physicians to 

Dr. Hargraves. The evidence shows that Dr. Hargraves informed the claims administrator that he 

does not act as a treating physician in workers’ compensation claims. 

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: February 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton