STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS 

MICHELLE D. MASTERS, 

Claimant Below, Petitioner 

FILED 

March 30, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0311 (BOR Appeal No. 2050894) 

(Claim No. 2013024698) 

GREENBRIER HOTEL CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Michelle D. Masters, by Patrick K. Maroney, her attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Greenbrier Hotel Corporation, 

by James W. Heslep, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 3, 2016, in 

which the Board affirmed an October 20, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 14, 2015, 

decision to deny medical authorization for a repeat cervical MRI and ten occupational therapy 

sessions over an eight month period. 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. 

Ms. Masters, a culinary instructor for Greenbrier Hotel Corporation, injured her neck and 

shoulder on July 11, 2012, while lifting a mini fridge onto a countertop. The claims administrator 

held the claim compensable on July 18, 2012, for a sprain of the shoulder/arm and neck as well 

as overexertion and strenuous movement. An MRI performed the same day revealed a left lateral 

C5-C6 disc protrusion creating nerve root encroachment, a small posterior central and left 

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paramidline C6-C7 disc protrusion creating no nerve root displacement, and a small focal 

posterior central T1-T2 disc protrusion creating no cord compression. 

Robert Thompson, M.D., of the Greenbrier Clinic, examined Ms. Masters on July 20, 

2012, and stated that she suffered from cervical disease. He suggested physical therapy and 

advised Ms. Masters to remain off work until further evaluation. Bruce Guberman, M.D., 

completed an independent medical evaluation on October 18, 2012, in which he opined that her 

treatment up to this point had been medically necessary and appropriate. Dr. Guberman believed 

that Ms. Masters was not at her maximum degree of medical improvement in relation to her 

cervical spine and would benefit from follow-ups with her treating physician and a nerve 

conduction study. Dr. Guberman believed Ms. Masters’s shoulders were doing well and were not 

the source of her problems. He found her to be at maximum medical improvement in relation to 

her shoulders and opined that she did not suffer any whole person impairment related to them. 

On May 23, 2013, Joseph Grady, M.D., performed an independent medical evaluation 

and noted that Ms. Masters has already completed forty-four physical therapy sessions up to this 

point with reports that they provided some relief. She has also been treated with oral steroids and 

returned to work after a few weeks on a part-time basis. He concluded that it would be 

reasonable for her to consider having injections in her neck in light of her structural 

abnormalities. Dr. Grady opined that she did not wish to pursue those, or if they cannot be 

performed, Ms. Masters would likely then be at maximum medical improvement. He believed 

the use of a nonsteroidal anti-inflammatory medication, such as Naproxen, is reasonable. 

James Dauphin, M.D., performed a physician’s review for the purpose of determining 

whether the request for occupational therapy sessions and occipital nerve blocks is reasonable. 

He recommended the nerve block but found that the occupational therapy sessions should be 

denied. He stated that Ms. Masters has had forty-five physical medicine treatments in this claim 

and has reached maximum medical improvement, with the exception of her neck. Dr. Dauphin 

stated that Ms. Masters should continue to receive epidural injections in her neck, and upon 

completion of the injections, Dr. Grady should be asked to issue an addendum report providing 

an impairment rating. He stated the occupational therapy sessions exceeded treatment guidelines 

set forth in West Virginia Code of State Rules § 85-20 (2006). 

Ms. Masters underwent cervical epidural injections on January 14, 2014. On May 12, 

2014, A.E. Landis, M.D., performed an independent medical evaluation. Dr. Landis opined that 

Ms. Masters was at her maximum degree of medical improvement in relation to all her injuries. 

However, he opined that Ms. Masters would require some ongoing treatment to maintain her 

maximum degree of medical improvement. Dr. Landis recommended the regular use of a home 

cervical traction device. 

Rebecca Thaxton, M.D., performed a physician’s review on November 16, 2014, which 

addressed the reasonableness of the requested repeat cervical MRI, cervical nerve block, and 

occupational therapy sessions. Dr. Thaxton did not recommend payment for the repeat cervical 

MRI and osteopathic manipulation. She did recommend payment of the repeat cervical nerve 

block. Dr. Thaxton opined that the physical therapy in this claim has been excessive and exceeds 

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the guidelines set forth in West Virginia Code of State Rules § 85-20. She concluded that 

occupational therapy sessions are no longer reasonable or within the treatment guidelines. Dr. 

Thaxton stated that an MRI performed now would not be reflective of the acute injury from 

2012, and therefore should not be approved. 

On December 18, 2014, the claims administrator initially denied the request for a repeat 

cervical MRI and ten occupational therapy sessions over an eight month period. On January 13, 

2015, the StreetSelect Grievance Board determined that a repeat MRI would not reveal anything 

pertinent to the 2012 injury. Further, the Board found that ten occupational therapy sessions over 

an eight month period were also not reasonably required. Based upon the StreetSelect Grievance 

Board’s determination, the claims administrator denied medical authorization for a repeat 

cervical MRI and ten occupational therapy sessions over an eight month period on January 14, 

2015. 

On August 20, 2015, Ms. Masters was deposed. She testified about her injury and the 

treatment she has received thus far. She was originally treated at the Greenbrier Clinic and then 

she had vocational rehabilitation. She returned to work in a modified form in October of 2012 

and started full duty sometime thereafter. Around January of 2015, her workload increased 

which she stated put more strain on her neck. 

On October 20, 2015, the Office of Judges determined that the medical evidence did not 

support the authorization of the additional treatment of a repeat cervical MRI or ten occupational 

therapy sessions over an eight month period for the treatment of the compensable sprain. The 

Office of Judges noted that under West Virginia Code of State Rules § 85-20-35.5 (2006), the 

expected recovery period for a sprain is not to exceed eight weeks. The Office of Judges noted 

that the request for a repeat MRI and occupational therapy was completed two years after the 

injury. Furthermore, Ms. Masters was determined to be at maximum medical improvement on 

May 12, 2014. The Office of Judges determined that the treatment received to date was excessive 

pursuant to the treatment guidelines contained in West Virginia Code of State Rules § 85-20. The 

Board of Review adopted the findings of the Office of Judges and affirmed its Order on March 3, 

2016. 

After review, we agree with the consistent decisions of the Office of Judges and Board of 

Review. The evidence of record supports the conclusion that any further treatment would be 

outside of the guidelines contained in West Virginia Code of State Rules § 85-20 without 

sufficient justification. Furthermore, there is evidence that Ms. Masters has reached maximum 

medical improvement. As a result, it was proper for the Office of Judges and Board of Review to 

deny authorization for such treatment. 

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. 

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Affirmed. 

ISSUED: March 30, 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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