Gregory A. Boyce v. West Virginia Division of Highways

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
GREGORY A. BOYCE March 6, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-158 (JCN: 2018020610) OF WEST VIRGINIA

WEST VIRGINIA DIVISION OF HIGHWAYS,
Employer below, Respondent

MEMORANDUM DECISION

Petitioner Gregory A. Boyce appeals a September 8, 2022, Order of the Workers’
Compensation Board of Review (“Board”) which affirmed three claim administrator
orders. An order dated December 27, 2021, closed the claim for temporary total disability
benefits; an order dated January 5, 2022, denied a lumbar MRI; and an order dated February
16, 2022, denied a back support from Hangar Orthotics. Respondent West Virginia
Division of Highways (DOH) filed a timely response. 1 Petitioner did not file a reply. The
issue on appeal is whether the Board erred in affirming the claim administrator’s orders.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Boyce sustained a compensable injury on March 13, 2018, when the truck he
was driving for the DOH was struck by another vehicle. Mr. Boyce was treated at Med
Express on the date of injury through at least April 3, 2018. According to the record, Mr.
Boyce complained of cervical, thoracic, lumbar, and left shoulder pain. Neither party
submitted a claim administrator order recognizing the compensable conditions. However,
a November 3, 2021, medical evaluation by Jennifer Lultschik, M.D., states the claim is
compensable for a neck sprain, a left shoulder sprain, a lumbar sprain, and an intervertebral
disc disorder with myelopathy.

According to Dr. Lultschik, Mr. Boyce underwent an MRI on April 12, 2018, which
revealed a “moderate right-sided posterior lateral disc herniation at the L4-L5 level.
Degenerative changes were seen at the L5-S1 level.” A February 21, 2019, medical

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Mr. Boyce is represented by J. Thomas Green, Esq. The DOH is represented by
Jillian L. Moore, Esq.
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evaluation by P. Kent Thrush, M.D., states that Mr. Boyce underwent a cervical MRI on
June 9, 2018, and a thoracic MRI on July 3, 2018. According to Dr. Thrush, the cervical
MRI revealed “degenerative arthritis and degenerative disc disease at C5-C6, C6-C7 with
moderate to severe left sided neuroforaminal stenosis at C5-C6;” the thoracic MRI revealed
“a small posterior disc herniation T3-T4, otherwise negative.”

Mr. Boyce was referred to Russell Biundo, M.D., and Robert Marsh, M.D., for
further treatment, and on November 19, 2018, Mr. Boyce underwent a right-sided
discectomy at L4-L5. Dr. Marsh performed the surgery.

Thereafter, Mr. Boyce was referred to Dr. Thrush on February 21, 2019, for the
above-described medical evaluation. Dr. Thrush wrote that Mr. Boyce had “some chronic
back pain into the right buttocks, but overall he feels that the surgery was helpful.” Mr.
Boyce also had “occasional aching in his neck” that was “not a lot different than it was
prior to [the compensable injury]” and “some occasional stiffness in both shoulders and he
did demonstrate very mild loss of range of motion symmetrically on both shoulders on
exam today.” Dr. Thrush evaluated Mr. Boyce’s compensable injuries finding that Mr.
Boyce was at maximum degree of medical improvement and that he had a 10% impairment
to the lumbar spine. Finally, Dr. Thrush wrote that Mr. Boyce had returned to work without
restrictions.

Mr. Boyce was treated by Krista Flesher, NP, on November 19, 2020. On that date,
Mr. Boyce complained of worsening chronic low back pain which was radiating to the right
lower extremity. Ms. Flesher diagnosed lumbago with radiculopathy (among other
diagnoses) and recommended a lumbar MRI. Mr. Boyce underwent a lumbar MRI on
December 22, 2020, which revealed “L4-5 postsurgical changes with improved right sided
stenosis. The left side degenerative changes at this level might be slightly increased.”

The record reflects that Mr. Boyce was involved in another motor vehicle collision
on February 24, 2021. Mr. Boyce was referred to Gobind Singh, M.D., a pain management
specialist, on April 28, 2021, who wrote that Mr. Boyce’s “[p]ain onset was 3/23/2018 after
[motor vehicle accident]. It has been bothersome since 2/23/2021 after he was involved in
a [motor vehicle accident].” Mr. Boyce reported low back pain that radiated to the left
lower extremity in the L3-L4 distribution. Dr. Singh diagnosed lumbar radiculopathy, a
bulging lumbar disc, lumbar spondylosis, low back pain, degenerative disc disease, and
lumbar facet arthropathy. He recommended epidural steroid injections at L3-L4 and L4-
L5. A follow-up with Dr. Singh on July 7, 2021, states that Mr. Boyce’s epidural steroid
injections reduced his pain for three to four months, and that Dr. Singh recommended
additional epidural steroid injections at L4-L5.

Rebecca Thaxton, M.D., reviewed Mr. Boyce’s medical records on July 22, 2021,
and recommended that the claim administrator deny the authorization request for steroid
injections because Mr. Boyce’s symptoms and diagnoses were attributable to an

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intervening motor vehicle collision on February 24, 2021. Mr. Boyce returned to Dr. Singh
on September 20, 2021, with the same symptoms. Dr. Singh examined Mr. Boyce and
diagnosed lumbar radiculopathy, degenerative disc disease, lumbar spondylosis, a bulging
disc, and a history of lumbar surgery. He referred Mr. Boyce back to Dr. Marsh “for
possible surgery for left sided radicular symptoms which are not responsive to injection
therapy.”

On September 21, 2021, Ms. Flesher requested that Mr. Boyce receive temporary
total disability benefits from February 22, 2021, through that date. On October 27, 2021,
Mr. Boyce returned to Dr. Marsh’s office. Dr. Marsh wrote that Mr. Boyce “was involved
in a [motor vehicle collision] in February [of 2021] and has had [low back pain] into the
[left lower extremity] since then that is worsening despite being in [physical therapy].” Dr.
Marsh requested authorization for another lumbar MRI.

Mr. Boyce saw Dr. Lultschik on November 3, 2021, for a medical evaluation. Mr.
Boyce reported low back pain that radiated down the left leg, lower extremity weakness
(Mr. Boyce reported instances of falling), and numbness and tingling in both feet. Ms.
Boyce was not working, and he was receiving temporary total disability benefits. Dr.
Lultschik examined Mr. Boyce and stated that his lumbar and left lower extremity
symptoms were related to non-compensable pre-existing degenerative disc disease, and
that Mr. Boyce’s lumbar surgery treated pre-existing pathology. According to Dr.
Lultschik, Mr. Boyce’s treatment at the time was for “chronic degenerative conditions.”
Dr. Lultschik believed Mr. Boyce was at maximum degree of medical improvement, that
he would not need any further treatment for the compensable conditions, and that he was
fully compensated with the prior 10% permanent partial disability award.

On November 8, 2021, Dr. Thaxton issued a “Physician Review,” stating that Mr.
Boyce’s request for a lumbar MRI should be denied. Dr. Thaxton noted that Mr. Boyce
had left lower extremity symptoms which were not present before the second motor vehicle
accident, and she believed Mr. Boyce’s symptoms were related to an intervening second
motor vehicle collision. On December 13, 2021, Ms. Flesher requested authorization for
Mr. Boyce to receive a back support from Hanger Orthotics. However, on January 24,
2022, Syam Stoll, M.D., issued a Physician Review, recommending that the claim
administrator deny the request for a back support. Dr. Stoll based this recommendation on
Dr. Lultschik’s statement that Mr. Boyce was at maximum degree of medical improvement
and in need of no further treatment from the compensable injury.

On December 27, 2021, the claim administrator closed the claim for temporary total
disability benefits based on Dr. Lultschik’s finding of maximum degree of medical
improvement; on January 5, 2022, the claim administrator denied Mr. Boyce’s request for
an MRI based on Dr. Thaxton’s Physician Review; and on February 16, 2022, Mr. Boyce’s
request for a back support was denied based on Dr. Stoll’s Physician Review. Mr. Boyce
protested to the Board.

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On September 8, 2022, the Board issued an order affirming the three claim
administrator denials at issue in this decision. The Board observed that Mr. Boyce had
intervening injuries since the compensable injury and lumbar surgery, and that Dr.
Lultschik found Mr. Boyce at maximum degree of medical improvement and in need of no
further treatment for the compensable injuries. The Board also questioned whether Mr.
Boyce had radiculopathy. The Board concluded that Mr. Boyce was not entitled to
additional temporary total disability benefits because he was at maximum degree of
medical improvement, that another lumbar MRI would not treat the compensable injury,
and that Mr. Boyce did not demonstrate that a back support was medically necessary. It is
from the Board’s September 8, 2022, order that Mr. Boyce now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion

After reviewing the record before this Court, we determine that the Board’s order
should be affirmed. The Board correctly noted that Mr. Boyce was in an intervening motor
vehicle collision in February of 2021, and the Board was not clearly wrong when it
determined that Mr. Boyce was at maximum degree of medical improvement and in need
of no further treatment for the compensable injury in this claim. After Mr. Boyce’s lumbar
surgery, he improved and returned to work without restrictions. Mr. Boyce may have had
some lumbar symptoms after surgery, but the record demonstrates that his inability to work
and need for treatment is not related to the compensable injury in this claim. In fact, Dr.
Marsh wrote on October 27, 2021, that Mr. Boyce was in a motor vehicle collision in
February of 2021, and that Mr. Boyce had low back pain that radiated into the left lower
extremity since the second accident. The Board was not clearly wrong. Finding no error,
we affirm the Board’s September 8, 2022, order.
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Accordingly, we affirm.

Affirmed.

ISSUED: March 6, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating.

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