Mark Miller v. West Virginia Division of Highways
20-0298
| W. Va. | Jul 19, 2021Background
- Mark A. Miller, a laborer, injured his neck/shoulders on October 16, 2017; claim found compensable for neck contusion, right shoulder contusion, cervical disc displacement and disorder.
- Three Independent Medical Evaluations: Dr. Mukkamala — 14% total impairment (awarded by claims administrator); Dr. Boone — 29% (did not apportion preexisting disease); Dr. Lultschik — 8% after heavy apportionment for preexisting degenerative disease.
- Claims administrator denied authorization for Tylenol #3, Valium, Percocet (and other meds), and denied referral to West Virginia Spine Center; Lidoderm patches later authorized by Office of Judges.
- Office of Judges upheld 14% permanent partial disability (gave weight to Mukkamala and Lultschik over Boone), denied referral to Spine Center, and denied opioids/regular medicine-check visits as unnecessary for the compensable injury.
- Board of Review affirmed the Office of Judges; West Virginia Supreme Court issued memorandum decision affirming the Board — rejecting Boone as an outlier and holding the denied meds/referral unnecessary for the compensable condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate PPD rating | Miller argued for higher rating (rely on Boone/others) | DOH relied on Mukkamala/Lultschik and claims admin 14% award | 14% PPD affirmed — Boone is outlier for failing to apportion preexisting disease |
| Referral to West Virginia Spine Center | Miller (via treating NP/Dr. Jackson) sought referral for chronic neck pain/radiculopathy | Employer and reviewers: no radiculopathy at MMI; further care treats preexisting disease | Referral denied — record shows MMI with no radiculopathy and likely treatment of noncompensable conditions |
| Authorization of Tylenol #3 and Percocet (opioids) | Dr. Jackson/NP: ongoing opioid therapy needed; extraordinary case warranting continued opioids and monthly checks | Employer/physician reviewers: opioids guideline-limited post-surgery; treatment now addresses preexisting degenerative disease | Denied — controlled-substance use beyond guideline window not shown to be necessary for compensable injury |
| Authorization of Valium (muscle relaxant) and monthly medicine checks | Treating providers: Valium treats muscle spasm/anxiety from compensable injury; monthly visits required for controlled-med monitoring | Employer/physician reviewers: Valium treats general medical conditions; regular visits unnecessary absent compensable condition requiring controlled meds | Denied — Valium and routine medicine checks are not reasonably necessary for the compensable injury |
Key Cases Cited
- Hammons v. W. Va. Off. of Ins. Comm'r, 235 W. Va. 577 (2015) (standard of appellate review and deference to board findings)
- Justice v. West Virginia Office Insurance Commission, 230 W. Va. 80 (2012) (de novo review for questions of law)
- Davies v. West Virginia Off. of Ins. Comm'r, 227 W. Va. 330 (2011) (standards for appellate review of board decisions)