Albert Lacy v. Charleston-Kanawha Housing Authority

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ALBERT LACY, February 2, 2023
Claimant below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-148 (BOR Appeal No. 2058220)
(JCN: 2021017263)

CHARLESTON-KANAWHA HOUSING AUTHORITY,
Employer below, Respondent

MEMORANDUM DECISION

Petitioner Albert Lacy appeals the August 18, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Charleston-Kanawha Housing
Authority filed a timely response. 1 Petitioner filed a reply. The issue on appeal is whether
the Board erred in affirming the Office of Judges’ (“OOJ”) order affirming the claim
administrator’s decision to deny physical therapy for Mr. Lacy’s lumbar disc disorder with
radiculopathy and lumbar spinal stenosis.

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.

Relevant to this appeal, Mr. Lacy suffered a work-related injury to his lumbar spine
in 2008. On March 6, 2008, Mr. Lacy underwent an independent medical evaluation
(“IME”) performed by Paul Bachwitt, M.D., who noted that X-rays revealed degenerative
changes at multiple levels in Mr. Lacy’s lumbar spine.

Regarding the instant claim, on February 12, 2021, Mr. Lacy, a maintenance
technician for the employer, sustained a work-related injury when he slipped on ice and
fell while retrieving a ladder from his vehicle. He sustained injuries to his left shoulder,
head, wrist, knee, leg, ankle, and foot. Several days later, Mr. Lacy presented to the
emergency room with complaints of pain and weakness. A CT scan of the head and cervical
spine were negative for acute abnormalities. X-rays of the left wrist showed mild to

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Petitioner is self-represented. Respondent is represented by Charity K. Lawrence,
Esq.
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moderate degenerative changes, and X-rays of the left shoulder showed acromioclavicular
degeneration, mild degeneration of the superior lateral humeral head, and a probable rotator
cuff tear. On February 25, 2021, Clark Adkins, M.D., examined Mr. Lacy and diagnosed
left wrist contusion/hematoma and left shoulder contusion/hematoma. Dr. Adkins did not
believe surgery was necessary and recommended physical therapy. By order dated March
4, 2021, the claim administrator held the claim compensable for contusion of the left
shoulder, left knee, and left wrist. It does not appear from the record that Mr. Lacy ever
contested this order.

Subsequently, Mr. Lacy was seen by Darshan Dave, M.D., in March of 2021. Mr.
Lacy reported left-sided weakness in his extremities, difficulty ambulating, paresthesia of
both feet with throbbing pain, neck and back pain that radiated into his extremities, memory
loss, and seizure-like activity. Dr. Dave diagnosed back pain with radiculopathy, cervical
radiculopathy, “fall due to ice and snow,” paresthesia of skin, memory loss, altered
consciousness, weakness, essential primary hypertension, atrial fibrillations, and chronic
kidney disease. Dr. Dave ordered a lumbar and cervical MRI and ordered Mr. Lacy to
continue with physical therapy, which he had been doing since the injury. EMG testing and
a repeat CT scan was also ordered due to Mr. Lacy’s memory loss, which was felt to be
related to either post-concussion syndrome or age-related cognitive decline, as Mr. Lacy
was in his seventies at the time of the injury. The repeat CT scan again showed no acute
abnormalities.

On April 1, 2021, Mr. Lacy returned to see Dr. Adkins and complained of difficulty
ambulating, as well as pain in his left wrist, left shoulder, left hip, and left knee. X-rays of
the wrist showed severe pantrapezial arthritis and a degenerative cyst. X-rays of the pelvis
and left hip showed mild arthritis. Dr. Adkins diagnosed left wrist contusion/hematoma,
left wrist primary osteoarthritis, left shoulder impingement syndrome, right knee primary
osteoarthritis, and left knee primary osteoarthritis. Dr. Adkins opined that Mr. Lacy would
eventually require a knee replacement but stated that surgery was not needed for Mr. Lacy’s
left hand or hip. He recommended continued physical therapy.

On April 4, 2021, Mr. Lacy underwent an MRI of the spine. The cervical MRI
showed degenerative changes and no evidence of acute process. The lumbar MRI revealed
advanced lumbar spondylosis with multiple levels of moderate to severe stenosis. The
thoracic MRI revealed degenerative joint disease. On April 5, 2021, Mr. Lacy was seen by
John Orphanos, M.D. Dr. Orphanos noted that the lumbar MRI revealed evidence of
multilevel moderate to severe stenosis, which was thought to be chronic. Dr. Orphanos was
unsure if the stenosis was responsible for his acute symptoms and recommended
conservative care, including physical therapy. The EMG testing was performed later in
April of 2021, and revealed sensory-motor axonal polyneuropathy, chronic neurogenic
denervation suggestive of cervical polyradiculopathy, and chronic neurogenic denervation
suggestive of lumbar polyradiculopathy.

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On April 26, 2021, Dr. Dave submitted a request for physical therapy two to three
times per week for four to six weeks for Mr. Lacy’s lumbar disc disorder with radiculopathy
and lumbar spinal stenosis. By order entered on May 3, 2021, the claim administrator
denied Dr. Dave’s request for physical therapy on the basis that the lumbar spine was not
a compensable component of the claim. Mr. Lacy filed a grievance, and the Encova Select
Grievance Board issued a determination on June 23, 2021, affirming the denial. That same
day, the claim administrator issued another order denying the request for physical therapy
based on the Grievance Board’s findings.

On July 16, 2021, Mr. Lacy underwent an IME performed by Syam Stoll, M.D. Dr.
Stoll reviewed Dr. Adkins’ notes, as well as the left shoulder MRI, and opined that Mr.
Lacy had extensive preexisting joint disease and a tear of the supraspinatus muscle with
atrophy. According to Dr. Stoll, these were chronic conditions and not due to an acute
injury. In Dr. Stoll’s opinion, the medical documentation did not support a discrete new
injury beyond the accepted condition of a contusion. Dr. Stoll stated that Mr. Lacy should
complete his current course of physical therapy, but that no additional treatment beyond
that was recommended.

On September 13, 2021, Michael Condaras, M.D., completed a review of the matter
and issued a recommendation. Dr. Condaras recommended that the request for physical
therapy be denied as the lumbar spine was not an accepted compensable condition in the
claim. He agreed with Dr. Stoll’s assessment that Mr. Lacy’s chronic lumbar back pain
predated the injury.

By order dated April 6, 2022, the OOJ affirmed the claim administrator’s order
denying physical therapy for the lumbar spine. The OOJ noted that the only compensable
conditions in the claim were contusions of the left shoulder, left knee, and left wrist. As
such, the OOJ found that Mr. Lacy was entitled to treatment for these three conditions only,
and the claim administrator was not required to provide treatment for conditions that were
not compensable. The OOJ further found that the medical evidence demonstrated that Mr.
Lacy had preexisting osteoarthritis in his low back and knee, as well as other parts of his
body, and that his arthritis was not attributable to the injury that occurred. The OOJ
observed that arthritis would have taken substantially longer to develop. Indeed, Dr.
Bachwitt’s report from the 2008 injury demonstrated that Mr. Lacy had degenerative
changes in his lumbar spine years before the instant injury occurred.

Moreover, the OOJ noted that Mr. Lacy did not initially report an acute injury to his
lower back. Rather, he reported chronic low back pain, which is indicative that he had pain
prior to the injury. In fact, no CT scans of Mr. Lacy’s lumbar spine were performed when
he initially presented for treatment. The OOJ noted that it was not until a month after the
accident that Dr. Dave requested a lumbar MRI due to left leg weakness. However, Dr.
Orphanos reviewed the MRI and found that it demonstrated multilevel moderate to severe
stenosis, which is a chronic finding, and not attributable to the injury. The OOJ lastly noted

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that the medical evidence demonstrated that Mr. Lacy suffered from polyneuropathy,
which could explain his lower extremity weakness, but that this condition was found to be
related to his diabetes and not the work-related injury. Accordingly, the OOJ concluded
that the claim administrator did not improperly deny physical therapy for the non-
compensable lumbar spine. On August 18, 2022, the Board adopted the findings of fact
and conclusions of law of the OOJ and affirmed its order. Mr. Lacy 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.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __W. Va.__, __, __S.E.2d __, __, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).
At the outset we note that Mr. Lacy’s arguments on appeal are either undecipherable
or outside the scope of the Board’s August 18, 2022, order on appeal. That order solely
decided the issue of whether the claim administrator erred in denying Mr. Lacy physical
therapy for his lumbar spine conditions and, as such, consideration of his arguments in this
appeal are limited to that issue alone. Regarding this issue, Mr. Lacy argues that he is
entitled to receive necessary treatment promptly and that the employer has “failed and
refused, to invest the time and effort required to acknowledge, examine[,] diagnose[,] and
treat him with respect to existing serious medical problems and concerns.”

Upon review, we find no error in the Board’s order affirming the OOJ’s order which
affirmed the claim administrator’s denial of physical therapy for the lumbar spine. Here,
the only compensable conditions are contusions of the left shoulder, left knee, and left
wrist. Mr. Lacy did not protest the order holding these conditions compensable, nor did he
seek to have additional conditions added to the claim. As such, Mr. Lacy’s lumbar spine is
non-compensable in this claim. Because an injury to the lumbar spine has not been held to

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be a compensable condition, he is not entitled to treatment for it. Therefore, the Board did
not err in affirming the OOJ’s order which affirmed the claim administrator’s denial of
physical therapy for Mr. Lacy’s non-compensable lumbar spine injury.

Accordingly, we affirm.

Affirmed.

ISSUED: February 2, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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