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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

MARY A. DEPTO, Claimant Below, Petitioner

vs.) No. 12-0001 (BOR Appeal Nos. 2045742 and 2045997) (Claim No. 2000032625)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER Commissioner Below, Respondent

and

REYNOLDS MEMORIAL HOSPITAL, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Mary A. Depto, by Sue Anne Howar d, her attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by Gary M. Mazezka, its attorney, filed a timely response.

This appeal arises from the Board of Re view’s Final Order da ted December 1, 2011, in which the Board reversed a February 22, 2011, and a May 2, 2011, Order of the Workers’ Compensation Office of Judges. In its February 22, 2011, Order, the Offi ce of Judges reversed the claims administrator’s Apri l 15, 2010, decision which denied Ms. Depto authorization for the following treatments: electromyogram (EMG) and nerve conduction (NCV) studies of bilateral lower extremities; MRI of lumbar spine, transforaminal epidural steroid injections of the left lumbar spine, and Opana 5 milligrams; and which refused to add lower extremity radiculopathy and bilateral rotator cuff syndrome as compensabl e conditions of the claim. In its May 2, 2011, Order, the Office of Judges reversed the clai ms administrator’s November 16, 2010, decision which denied authorization for transforaminal epi dural injections for Ms. Depto’s lumbar spine. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. FILED

October 24, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds that the Board of Re view’s decision is so clearly wrong based on the evidentiary record that even when all inferences are resolved in favor of the Board of Review’s findings, reasoning, and conclusions, there is in sufficient support to sust ain the decision. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memora ndum decision rather than an opinion.

Ms. Depto worked as a licensed practical nurse at Reynolds Me morial Hospital. On November 7, 1999, Ms. Depto injured her left shoulder, low back, an d neck while trying to catch an obese patient who was falli ng. Her claim was held compensabl e for a sprain of the neck, sprain of the back, sprain of the shoulder, di splaced lumbar intervertebral disc, and major depressive disorder. She received various treatm ents and services on this claim, including three surgeries of the left shoulder and a surgery of the right shoulder, which had been injured during physical therapy. Despite these treatments, Ms. Dept o had persistent pain. In order to treat her continuing symptoms, Dr. Lamperski requeste d EMG/NCV testing, a lumbar spine MRI, transforaminal steroid injections, and Opana 5 milligrams. He also requested that the claims administrator add the diagnoses of lower extr emity radiculopathy and bilateral rotator cuff syndrome as compensable conditions of the claim.

On April 15, 2010, the claims administrator denied authorization for the requested treatments and denied the addition of the request ed diagnoses as compensable conditions of the claim. On November 16, 2010, the claims administ rator denied a request from Dr. LoDico for transforminal epidural steroid injections. Both denials were based on an independent medical evaluation of Dr. Jin, who believed that Ms. Depto’s chronic complaints of lower back pain were more likely the result of pre-ex isting degenerative lumbar disc disease and Ms. Depto’s shoulder pain was more likely the result of progressive degenerative arthritis. On February 22, 2011, the Office of Judges reversed the claims admini strator’s April 15, 2010, decision, granting Ms. Depto’s request for an MRI, steroid injections, and Opana. The Office of Judges also added the two requested diagnoses as conditions of the claim. On May 2, 2011, the Office of Judges reversed the November 16, 2010, claims admini strator’s decision a nd again authorized transforaminal epidural steroid injections for Ms. Depto’s lumbar spine. The Office of Judges then clarified its February 22, 2011, Order, on May 3, 2011, to include authorization for

EMG/NCV studies. But th e Board of Review reversed both the February 22, 2011, and May 2, 2011, Orders of the Office of Judges on Decembe r 1, 2011, and reinstated the April 15, 2010, and November 16, 2010, decisions of the claims ad ministrator, leading Ms. Depto to appeal.

In its February 22, 2011, Order, the Office of Judges concluded that Ms. Depto was entitled to the requested treatments and to the addition of the lower extremity radiculopathy and bilateral rotator cuff syndrome as compensable c onditions of the claim. The Office of Judges

found that there was no credible evidence that the requested treatment and additional conditions were attributable to anything other than Ms. Depto’s November 7, 1999, injury. The Office of Judges found evidence of radicular symptoms ear ly on in the record. This evidence was supported by electrodiagnostic te sting and demonstrated that lower extremity radiculopathy3 should be added as a compensabl e condition of the claim. The O ffice of Judges also found that Ms. Depto had three prior left shoulder surger ies and one prior right shoulder surgery which supported the additional diagnosis of bilateral rotator cuff syndrome.

In its May 2, 2011, Order, the Office of Judge s concluded that Ms. Depto was entitled to the requested transforaminal epidural steroid in jections for her lumbar spine. The Office of Judges found that the requested treatment reas onably related to Ms. Depto’s compensable conditions. The Office of Judges found that th e Office of Insurance Commissioner did not submit any evidence that refuted Dr. LoDico’s request for epidural steroid injections.

In both Orders the Office of Judges considered the independent medical evaluation of Dr. Jin. The Office of Judges attributed little weight to the report finding that there was no evidence that Ms. Depto suffered from a degenerative co ndition prior to the November 7, 1999, injury. The Office of Judges found that Dr. Jin’s opinion contradicted Ms. Depto’s long history of approved treatment. The Office of Judges also found that Ms. De pto’s shoulder, cervical, and lumbar injuries were already comp ensable conditions of the claim.

The Board of Review reversed both Orders of the Office of Judges. The Board of Review

reinstated the claims administrator’s denials of authorization for treatment and rejection of the additional compensable diagnoses. The Board of Review relied on the report of Dr. Jin and also

found evidence in the record of pre-existing degenerative disc di sease. The Board of Review pointed to an MRI, pre-dating the compensable in jury, which evidenced mild joint arthropathy.

The Board of Review also found evidence that Ms. Depto had developed degenerative disc disease by early 2000. The Board of Review concl uded that Ms. Depto’s current symptoms and

need for treatment were not related to her co mpensable injury. The Board of Review also concluded that bilateral rotator cuff syndrome and lower extremity radiculopathy were not causally linked to her compensable injury.

The Order of the Board of Review is so clearly wrong based upon th e evidentiary record

that even when all inferences are resolved in favor of the Board of Review’s findings, reasoning, and conclusions, there is insuffi cient support to sustain the deci sion. West Virginia Code § 23-5- 15(d) (2005). Ms. Depto’s claim has previously been held compensable for injuries to her shoulder, cervical spine, and lumbar spine. Ther e is sufficient evidence in the record that the diagnoses of lower extremity radiculopathy an d bilateral rotator cuff syndrome were causally linked to her compensable injury. The treatment requests of Dr. Lamp erski and Dr. LoDico provide adequate justification for each diagnostic service and medication. Each treatment is reasonably and necessarily related to Ms. Depto’ s compensable conditions. Finally the report of Dr. Jin is the only evidence in the record that related Ms. Depto’s symptoms to a noncompensable condition. The report is not sufficient to rebut the entire weight of the evidence.

For the foregoing reasons, we find that the deci sion of the Board of Review is so clearly wrong based upon the evidentiary record that even wh en all inferences are resolved in favor of the Board of Review’s findings, reasoning, and c onclusions, there is insufficient support to sustain the decision. Therefore, the decision of the Board of Re view is reversed and remanded4 with instructions to reinstat e the Office of Judges’ February 22, 2011, Order, the May 3, 2011, clarifying Order, and th e May 2, 2011, Order.

Reversed and remanded.



### ISSUED: October 24, 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