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Speedway clerk gets only medical costs for back bruised in attack


A Speedway L.L.C. sales clerk who suffered a compensable back bruise when she was assaulted on the job is not entitled to vocational rehabilitation services or a functional capacity evaluation, West Virginia’s Supreme Court of Appeals has ruled.

Janet L. Richardson suffered significant bruising on her back after being repeatedly shoved against a metal sink at work by an attacker on Aug. 29, 2011, court records show. The claims administrator found that Ms. Richardson suffered a compensable back contusion and determined that she was eligible only for necessary medical treatment and expenses. A board-certified family nurse practitioner released her to return to work on Sept. 3, 2011, without restrictions, according to records.

However, an MRI of her lumbar spine taken sometime after Sept. 3, 2011 and before Dec. 29, 2011 revealed multilevel degenerative disc disease and herniations, according to records. As a result, the nurse practitioner placed Ms. Richardson on light-duty work and restricted her from lifting more than 10 pounds or standing for more than two hours during the work day.

Speedway said it wasn’t able to accommodate the restrictions, and Ms. Richardson stopped working in the latter half of 2011.

A physician retained by Speedway to conduct an independent medical evaluation soon after Ms. Richardson stopped working found she had reached maximum medical improvement and that no additional medical treatment was necessary for her compensable contusion. The doctor determined that the MRI revealed “age-related degenerative disc disease at multiple levels of her spine,” and attributed her ongoing symptoms to this condition. He assigned Ms. Richardson a 5% whole-person impairment related to her lumbar injury, according to records.

The nurse practitioner again evaluated Ms. Richardson and recommended that she receive rehabilitation and a functional capacity evaluation to assist her in returning to work, records show. The claims administrator denied the request for a functional capacity evaluation on March 7, 2012, and the request for physical and vocational rehabilitation services was denied on April 27, 2012.

Ms. Richardson also requested that her permanent partial disability award be computed on the basis of six weeks for every 1% of disability. That request was denied by the claims administrator on April 16, 2012, records show.

On June 28, 2013, the Workers’ Compensation Office of Judges, which is part of the Office of the Insurance Commissioner of West Virginia, remanded the claims administrator’s decision for further consideration of vocational rehabilitation benefits, including whether Ms. Richardson was entitled to a functional capacity evaluation, records show. But in January 2014, the Workers’ Compensation Board of Review reinstated the claims administrator’s decision denying the request.

On appeal, the Office of Judges found that Ms. Richardson was entitled to additional consideration of the available rehabilitation services, including a functional capacity evaluation, as Speedway “had not carried its shared responsibility … in attempting to return Ms. Richardson to work,” records show.

The Board of Review, however, reinstated the claims administrator’s decision, noting that the Office of Judges didn’t have jurisdiction since Ms. Richardson’s entitlement to rehabilitation and a functional capacity evaluation had already been considered in an earlier decision.

The Supreme Court of Appeals of West Virginia on Friday affirmed the board’s decision.

The court ruled that Ms. Richardson’s 5% permanent partial disability award should be computed based on the standard four-week rate under West Virginia law, and that her “need for vocational services, including a functional capacity evaluation, is related to noncompensable degenerative conditions and not her compensable lumbar contusion.”

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