STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

LUTHER LILLY, June 8, 2017 

Claimant Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0638 (BOR Appeal No. 2051066) 

(Claim No. 2011027115) 

BRUCE ALLEN, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Luther Lilly, by Reginald D. Henry, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Bruce Allen, Inc., by Steven K. 

Wellman, its attorney, filed a timely response. 

The issue on appeal in this case is whether an anterior/posterior lumbar fusion at L4-5 

and L5-S1 should be authorized. On January 31, 2015, the claims administrator denied a request 

for authorization of an anterior/posterior lumbar fusion at L4-5 and L5-S1. The Office of Judges 

affirmed the decision on January 27, 2016. On June 7, 2016, the Board of Review affirmed the 

Office of Judges’ Order. 

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. Lilly, a heavy equipment operator, was injured on January 25, 2011, while 

repetitively bending, twisting, and lifting bags of concrete. The claim was held compensable for 

a lumbar sprain/strain, herniated disc, and radiculopathy. Mr. Lilly was treated by Matthew 

Walker, M.D., on April 6, 2011. Dr. Walker conducted a physical examination and reviewed 

diagnostic testing which showed degenerative disc disease, most significant at L4-5 and L5-S1. 

He recommended that Mr. Lilly continue physical therapy and stop smoking. 

Marsha Bailey, M.D., performed an independent medical evaluation on February 14, 

2012. Mr. Lilly reported constant pain in the upper lumbar spine radiating into the lower lumbar 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

spine, buttocks, thighs, calves, and feet. Dr. Bailey opined that he suffered from chronic low 

back pain without true radiculopathy. She found that his expectations following surgery were 

unrealistic. Mr. Lilly indicated he was interested in seeing Dr. Walker’s partner, John Schmidt, 

M.D., and stated that if Dr. Schmidt would not perform the operation, he would find someone 

who would. Dr. Bailey noted that he had unrealistic expectations for the surgery. Dr. Bailey 

suggested that he return to Dr. Walker for reevaluation. If he did not undergo back surgery, she 

found that an 8% impairment rating was appropriate, representing 4% for degenerative disc 

disease and 4% for the compensable injury. 

A treatment note by Dr. Walker dated October 11, 2012, indicates that Mr. Lilly was seen 

three months post left L4-5 microdiscectomy. He still had significant lower back pain and no 

significant improvement of his leg pain. An MRI taken on October 3, 2012, showed degenerative 

disc disease at L4-5 and L5-S1. Dr. Walker diagnosed spondylosis and recommended that Mr. 

Lilly see Andrew Thymius, D.O., a pain medicine specialist. 

On December 6, 2012, Dr. Bailey performed a second independent medical evaluation. 

She diagnosed chronic low back pain with left radiculopathy. She described Mr. Lilly as highly 

pain focused. She disagreed with Dr. Thymius’s recommendation of additional surgery. She 

found that he had reached maximum medical improvement. She opined that Mr. Lilly’s present 

complaints were related to the compensable injury. Though he had mild, preexisting 

degenerative changes of the lumbar spine, it did not account for the majority of his ongoing 

symptoms. She recommended 10% whole person impairment. 

In a letter to the claims administrator, Dr. Walker indicated that he saw Mr. Lilly that day 

and he still had significant pain. Mr. Lilly disagreed with Dr. Bailey’s assessment of maximum 

medical improvement. Dr. Walker opined that there was a 60% chance that a lumbar fusion 

would improve Mr. Lilly’s pain and requested approval for a second opinion. In a treatment note 

on December 10, 2013, Dr. Walker stated that Mr. Lilly had gotten a second opinion from Sandy 

Emery, M.D., who did not see Mr. Lilly in person but did review the diagnostics studies. Dr. 

Emery did not recommend the fusion. On October 4, 2013, an MRI showed degenerative 

changes at L4-5 and L5-S1 without herniation. Dr. Walker stated that though he and Mr. Lilly 

had discussed fusion previously, he now believed that surgery would not be helpful. 

On August 26, 2014, Dr. Thymius recommended a lumbar discography to see if the 

painful disc could be identified for possible spinal fusion. The results showed that the pain was 

coming from the L4-5 and L5-S1 discs. Mr. Lilly was then treated by Rajesh Patel, M.D., on 

October 27, 2014. Dr. Patel noted that Mr. Lilly had previously undergone a discectomy without 

much improvement of his pain. Dr. Patel diagnosed annular tears at L4-5 and L5-S1, lumbar 

radiculitis, lumbago, discogenic back pain, and lumbar post-laminectomy syndrome. He 

recommended a fusion and opined that there was a two out of three probability of improvement. 

A.E. Landis, M.D., disagreed with a L4-5 and L5-S1 fusion in a November 18, 2014, 

independent medical evaluation. He stated that the procedure was highly unlikely to be of benefit 

to Mr. Lilly given his prior response to conservative treatment. The recovery would take a year 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and would not allow him to return to any gainful employment. Dr. Landis recommended a back 

brace and a trial spinal cord stimulator. 

Saghir Mir, M.D., performed an independent medical evaluation on October 26, 2015, in 

which he diagnosed status post microdiscectomy, early minimal degenerative changes at L4-5 

and L5-S1, and post-surgical changes causing irritation of the left L5 nerve root. He opined that 

Mr. Lilly’s symptoms were mostly related to the compensable injury. Dr. Mir stated that he saw 

no indication for a fusion at L4-5 and L5-S1. He stated that there was very minimal evidence of 

degenerative discs and opined that surgery would not help Mr. Lilly. 

The claims administrator denied a request for authorization of an anterior/posterior 

lumbar fusion at L4-5 and L5-S1 on January 31, 2015. The Office of Judges affirmed the 

decision in its January 27, 2016, Order. It found that Drs. Walker, Patel, Landis, and MRI are all 

orthopedic surgeons while Drs. Bailey and Thymius are not. Drs. Mir, Landis, and Patel treated 

Mr. Lilly on one occasion, whereas Dr. Walker saw him multiple times. After reviewing the 

most recent diagnostic testing and having seen Mr. Lilly on numerous occasions, Dr. Walker 

recommended against surgery. His opinion was supported by the reports of Drs. Landis and Mir. 

Dr. Patel, who recommended surgery, was only supported by Dr. Thymius, who acted as Mr. 

Lilly’s pain management physician. In the absence of a second orthopedic surgeon supporting 

Dr. Patel’s recommendation for surgery, the Office of Judges concluded that a preponderance of 

the evidence supported the claims administrator’s denial of the surgery. The Board of Review 

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

Order on June 7, 2016. 

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

affirmed by the Board of Review. A preponderance of the medical evidence indicates that Mr. 

Lilly would not benefit from the requested surgery. Multiple independent medical evaluations 

and the treatment notes of Dr. Walker support this conclusion. The only evidence in favor of 

surgery was the opinions of Dr. Patel and Dr. Thymius. The Office of Judges and Board of 

Review properly found that their opinions were not persuasive in light of the other evidence of 

record. 

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. 

3 
 

 

 

 

 

 

ISSUED: June 8, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

4