STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 1, 2015 

RORY L. PERRY II, CLERK 

WILLIAM JOHNSTON, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0360 (BOR Appeal No. 2048752) 

(Claim No. 2012005152) 

PUTNAM PUBLIC SERVICE DISTRICT, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner William Johnston, by Edwin H. Pancake, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Putnam Public Service District, by 

Alyssa A. Sloan, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 18, 2014, in 

which the Board affirmed an August 16, 2013, Order of the Workers’ Compensation Office of 

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

decision denying a request for MRIs of the brain, cervical spine, and thoracic spine; a pain clinic 

evaluation for the lumbar spine; and a follow-up appointment with David Weinsweig, M.D. 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. Johnston, a waste water treatment operator, was injured in the course of his 

employment on August 10, 2011, when he was in a motor vehicle accident. Mr. Johnston was 

treated that day at Charleston Area Medical Center where he reported pain in his head, neck, and 

mid-back. He was diagnosed with neck and back strain. He returned to Charleston Area Medical 

Center on August 12, 2011, with severe pain in his mid-back. At that time, he specifically denied 

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pain in his lumbar spine. He was diagnosed with cervical and dorsal spine strains. The claim was 

held compensable for cervical and thoracic sprains. 

A September 28, 2011, MRI revealed degenerative changes in the lumbar spine and a 

syrinx in the thoracic spine.1 Marsha Bailey, M.D., Mr. Johnston’s treating physician, stated in 

her November of 2011 treatment notes that the sprain should have healed by that point as it had 

been ten weeks since the compensable injury. She recommended he return to work. On 

December 19, 2011, Rebecca Thaxton, M.D., performed a physician review in which she 

recommended that the addition of lumbar radiculitis be denied. Dr. Thaxton noted that Mr. 

Johnston originally reported neck and mid-back pain but specifically denied lower back pain. 

She noted that the lumbar MRI occurred due to the finding of a thoracic syrinx, which was 

unrelated to the compensable injury. She also noted that David Caraway, M.D., found 

degenerative changes on the MRI. She opined that degenerative changes are not causally 

connected to the claim. Therefore, the addition of the lower back to the claim would be outside 

of the guidelines found in West Virginia Code of State Rules § 85-20-37.2 (2006). Further, the 

treatment notes of Drs. Bailey, Caraway, and Weinsweig do not support the addition of lumbar 

radiculitis to the claim. 

The StreetSelect Grievance Board determined on February 3, 2012, that lumbar 

radiculitis should not be added to the claim. It found that the compensable conditions in the 

claim are cervical and thoracic sprains. Mr. Johnston had no lumbar complaints for the first 

month and a half following his compensable injury. Further, Dr. Bailey stated that the lumbar 

spine condition is unrelated to the compensable injury. On July 13, 2012, the Board determined 

that lumbar sprain/strain and lumbar disc herniation with myelopathy should also not be added to 

the claim. 

An independent medical evaluation was performed by Michael DeWitt, D.O., on 

February 17, 2012, in which he also determined that Mr. Johnston’s lumbar spine condition is 

unrelated to his compensable injury. He found that a review of the medical records shows that 

Mr. Johnston did not report lower back pain in his initial emergency room visit or his follow-up 

visit two days later. In fact, he specifically denied lower back pain on August 12, 2011. The 

claims administrator denied requests to add lumbar radiculitis, lumbar sprain, and lumbar disc 

herniation to the claim. Those decisions were subsequently affirmed by the Office of Judges, 

Board of Review, and this Court. 

In a June 20, 2012, treatment note, Dr. Weinsweig stated that Mr. Johnston suffers from 

chronic pain with radiculopathy and had an annular tear at L4-5 that was temporally related to 

the compensable accident. He also had a syrinx in his thoracic spine. Dr. Weinsweig requested 

authorization for brain, cervical, and thoracic MRIs, stating that they were absolutely necessary 

due to the pre-existing syrinx. The claims administrator denied the request for MRIs as well as a 

request for a pain clinic evaluation for the lumbar spine and a follow-up appointment with Dr. 

Weinsweig on October 8, 2012. 

1 A syrinx is a cyst in the spinal cord. 

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The Office of Judges affirmed the claims administrator’s decision in its August 16, 2013, 

Order. It found that the claim is only compensable for sprain/strain of the cervical and thoracic 

spine. Dr. Weinsweig stated in his treatment request that MRIs of the brain, cervical, and 

thoracic spine were necessary due to the presence of a thoracic syrinx, which was pre-existing 

and not compensable. The Office of Judges therefore found that the treatment is not medically 

necessary or reasonably required to treat a compensable condition in the claim. The Office of 

Judges noted that the lumbar spine is also not a compensable component of the claim. It took 

notice of its December 4, 2012, and January 24, 2013, Orders affirming denials of requests to 

add lumbar radiculitis, lumbar sprain/strain, and lumbar disc herniation with myelopathy to the 

claim. The Office of Judges further found that the StreetSelect Grievance Board determined on 

October 5, 2012, that Dr. Bailey clearly noted in her treatment records that the lumbar spine and 

syrinx were not related to the compensable injury and that treatment for them should not be 

covered. Drs. DeWitt and Thaxton concurred. The Board also found that Dr. Weinsweig stated in 

his treatment notes that the syrinx was unrelated to the compensable injury and recommended the 

MRIs to check for tumor or vascular malformation. The Board found that while the tests may be 

necessary, they should not be authorized in this claim because the condition is not a compensable 

component. The Office of Judges agreed with the Board’s recommendation. The Board of 

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

its Order on March 18, 2014. 

On appeal, Mr. Johnston argues that he had no back pain and was receiving no treatment 

for his back prior to the compensable injury. He asserts that it is therefore only logical that his 

current back pain is the result of the compensable injury. Putnam Public Service District argues 

that the only compensable conditions in the claim are neck and thoracic strains, which occurred 

more than three years ago and have reached maximum medical improvement. It further argues 

that the requested treatment is not necessary to treat the compensable injury. 

After review, we agree with the reasoning of the Office of Judges and the conclusions of 

the Board of Review. This Court previously determined in Johnston v. Putnam Public Service 

District, No. 13-1105 (Dec. 3, 2014) (memorandum decision) and Johnston v. Putnam Public 

Service District, No. 13-1106 (Dec. 3, 2014) (memorandum decision) that the lumbar spine is not 

a compensable component of the claim. Because the condition is not compensable, the requested 

medical treatment for it was properly denied. The evidentiary record also clearly shows that the 

thoracic syrinx pre-existed and is unrelated to the compensable injury. Tests and treatment for it 

were also properly denied. 

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: June 1, 2015 

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CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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