STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 7, 2014 

RORY L. PERRY II, CLERK 

DOLLY PENNINGTON, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0662 (BOR Appeal No. 2048070) 

(Claim No. 2011032824) 

HEALTH MANAGEMENT ASSOCIATES, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Dolly Pennington, by Anne L. Wandling, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Health Management Associates, by 

Daniel G. Murdock, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 30, 2013, in which 

the Board affirmed a January 16, 2013, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s March 13, 2012, decision 

denying authorization for an anterior discectomy with decompression of the spinal cord and 

nerve roots. 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

Ms. Pennington worked for Health Management Associates as a housekeeper. On April 

2, 2011, she was pushing and pulling a bed when she felt pain in her back and neck. Following 

the injury, an MRI was taken of her cervical spine which showed a disc protrusion at the C4-5 

and C5-6 discs and a disc herniation at the C6-7 disc with a mild degree of spinal stenosis. The 

claims administrator held the claim compensable for an upper back and neck injury. Ms. 

Pennington then came under the care of Norman Mayer, M.D., who found that Ms. Pennington 

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had pain in her neck and numbness radiating into her fingertips. Dr. Mayer found that she had 

received physical therapy on her cervical spine which did not significantly reduce her pain. Dr. 

Mayer suggested that Ms. Pennington undergo an anterior cervical discectomy to repair her 

herniated disc and spinal stenosis. An electromyogram (EMG) was then conducted which 

showed that she had C7 radiculopathy on her left side. Dr. Mayer’s request was submitted to 

Kenneth Lee, M.D., who reviewed Ms. Pennington’s records and found that the requested 

surgery was not medically necessary. On March 13, 2012, the claims administrator denied a 

request for an anterior discectomy with decompression of the spinal cord and nerve roots based 

on Dr. Lee’s report. Dr. Mayer then testified by deposition that the requested discectomy and 

decompression surgery was medically necessary to treat Ms. Pennington’s cervical condition. Dr. 

Mayer also stated that her cervical pain had grown progressively worse since he first began to 

treat her. Adnan N. Silk, M.D., then evaluated Ms. Pennington. He found that Ms. Pennington 

had a possible herniated C6-7 disc with nerve root compression. Dr. Silk also believed that these 

problems were primarily related to the compensable injury. Dr. Silk, however, recommended that 

she receive conservative treatment, including physical therapy, pain management, and epidural 

injections prior to undergoing surgical treatment. On January 16, 2013, the Office of Judges 

affirmed the claims administrator’s decision. The Board of Review affirmed the Order of the 

Office of Judges on May 30, 2013, leading Ms. Pennington to appeal. 

The Office of Judges concluded that the request for cervical disc surgery was premature 

and should not be authorized. The Office of Judges determined that Ms. Pennington had not fully 

utilized her non-surgical treatment options, including physical therapy and pain management, as 

directed by West Virginia Code of State Rules § 85-20-36.3(f) (2006). In reaching this 

conclusion, the Office of Judges relied on the opinion of Dr. Silk. It also found that if these 

conservative treatment methods were unsuccessful, Ms. Pennington could submit a second 

request for the surgery. The Board of Review adopted the findings of the Office of Judges and 

affirmed its Order. 

The decision of the Board of Review was based on a material misstatement or 

mischaracterization of the evidence. Ms. Pennington has demonstrated that the requested cervical 

anterior discectomy with decompression is medically related and reasonably required to treat her 

compensable cervical injury. The treatment notes and deposition testimony of Dr. Mayer 

demonstrate that she had a disc herniation at the C6-7 disc which is related to her compensable 

injury. His treatment notes further show that Ms. Pennington has cervical radiculopathy and her 

pain has progressed despite some conservative treatment which included physical therapy. Dr. 

Mayer’s diagnosis of Ms. Pennington’s cervical problems is supported by the MRI and EMG 

evidence in the record. The decision of the Board of Review did not sufficiently consider 

evidence in both Dr. Mayer and Dr. Silk’s reports which showed that Ms. Pennington had 

already received physical therapy and that this conservative treatment method did not 

significantly relieve her pain. The opinion of Dr. Mayer and the objective evidence in the record 

demonstrate that Ms. Pennington is entitled to the requested cervical discectomy under West 

Virginia Code of State Rules § 85-20-36.3(f). 

For the foregoing reasons, we find that the decision of the Board of Review is based on a 

material misstatement or mischaracterization of particular components of the evidentiary record. 

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Therefore, the decision of the Board of Review is reversed and remanded with instructions to 

authorize the requested anterior discectomy with decompression of the spinal cord and nerve 

roots. 

Reversed and Remanded. 

ISSUED: October 7, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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