STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 2, 2014 

RORY L. PERRY II, CLERK 

REBECCA L. FAULKNER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0163	 (BOR Appeal No. 2048674) 

(Claim No. 2007219123) 

WHEELING-NISSHIN, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Rebecca L. Faulkner, by M. Jane Glauser, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Wheeling-Nisshin, Inc., by Marion 

Ray, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 24, 2014, in 

which the Board affirmed a July 19, 2013, Order of the Workers’ Compensation Office of 

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

2012, decision denying a request to add lower extremity radicular syndrome and discogenic 

syndrome as compensable components of the claim. The Office of Judges reversed the claims 

administrator’s February 2, 2013, decision denying a request for authorization of the medication 

Lyrica and authorized the requested medication. Additionally, the Office of Judges reversed 

another claims administrator’s decision dated February 2, 2013, denying a request for 

authorization of an interlaminal epidural steroid injection and authorized the requested 

treatment.1 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. 

1 The portion of the Office of Judges’ decision reversing both of the February 2, 2013, decisions 

has not been appealed to this Court. 

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Ms. Faulkner sustained serious injuries on March 18, 2007, when she fell a distance of 

approximately fifteen to twenty feet while attempting to avoid a piece of construction equipment. 

She was immediately treated in the University of Pittsburgh Medical Center’s Presbyterian 

Hospital emergency department for a closed head injury with loss of consciousness, an acute L1 

compression fracture, and a fracture of the medial malleolus. Ms. Faulkner’s claim was held 

compensable for fracture of the ankle, fracture of a lumber vertebra, injury of other unspecified 

sites, and major depressive disorder. 

Ms. Faulkner has undergone a T11 – L3 posterior spinal fusion, along with extensive pain 

management therapy, following the March 18, 2007, accident. On July 19, 2012, Lloyd 

Lamperski, M.D., Ms. Faulkner’s treating physician, completed a diagnosis update request 

listing Ms. Faulkner’s current diagnoses as lumbar spine pain, lower extremity radicular 

syndrome, discogenic syndrome, and thoracic spine pain. On September 26, 2012, Randall Short, 

D.O., performed a records review and recommended denying Dr. Lamperski’s request to add 

lower extremity radicular syndrome and discogenic syndrome as compensable components of the 

claim. After reviewing Ms. Faulkner’s medical record, including multiple treatment notes from 

Dr. Lamperski, Dr. Short concluded that the record contains no objective medical evidence 

confirming the presence of radiculopathy aside from Ms. Faulkner’s subjective complaints of 

lower back pain radiating in to the left lower extremity. Dr. Short then opined that the current 

compensable diagnosis regarding the lumbar spine accounts for Ms. Faulkner’s continuing 

lumbar spine pain which, in actuality, is a symptom and not an objective medical finding. 

On December 14, 2012, the StreetSelect Grievance Board relied on Dr. Short’s record 

review in making its determination that the request to add lower extremity radicular syndrome 

and discogenic syndrome as compensable components of the claim should be denied. On the 

same date, the claims administrator denied Dr. Lamperski’s request to add lower extremity 

radicular syndrome and discogenic syndrome as compensable components of the claim. On 

February 2, 2013, the claims administrator denied a request from Dr. Lamperski for authorization 

of the medication Lyrica. In a separate February 2, 2013, decision, the claims administrator 

denied a request from Dr. Lamperski for authorization of an interlaminal epidural steroid 

injection. 

In its Order, the Office of Judges affirmed the December 14, 2012, claims administrator’s 

decision denying the request to add lower extremity radicular syndrome and discogenic 

syndrome as compensable components of the claim. Additionally, the Office of Judges reversed 

both of the February 2, 2013, claims administrator’s decisions, and authorized the use of the 

medication Lyrica and authorized the requested interlaminal epidural steroid injection. As noted 

above, the Office of Judges’ reversal of the February 2, 2013, claims administrator’s decisions 

has not been appealed to this Court. Therefore, the sole issue on appeal is the compensability of 

lower extremity radicular syndrome and discogenic syndrome. On appeal, Ms. Faulkner asserts 

that the evidence of record demonstrates that she is experiencing symptoms associated with 

lumbar radiculopathy, and therefore the requested additional compensable diagnoses should be 

added as compensable components of the claim. 

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Dr. Lamperski requested the addition of lower extremity radicular syndrome and 

discogenic syndrome as compensable components of the claim following Ms. Faulkner’s 

continued reports of lumbar and thoracic pain that radiates down the posterior aspect of the left 

lower extremity. In affirming the claims administrator’s December 14, 2012, decision, the Office 

of Judges relied on Dr. Short’s finding that Ms. Faulkner’s subjective complaints are not 

supported by objective medical evidence verifying the presence of lumbar radiculopathy. 

Further, the Office of Judges relied on Dr. Short’s conclusion that the current compensable 

diagnoses in the instant claim encompass Ms. Faulkner’s current symptomology. The Board of 

Review affirmed the reasoning and conclusions of the Office of Judges in its decision of January 

24, 2014. We agree with the reasoning and conclusions of the Board of Review. 

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: December 2, 2014 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Robin J. Davis 

Justice Margaret L. Workman 

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