Background
Tina Spence sustained an occupational back injury on February 20, 2016, while working as a patient-care attendant at Thomas Memorial Hospital when a patient grabbed her and pulled her down. She was diagnosed with acute lumbar strain. In August 2016, following conservative treatment and imaging showing disc disease and radiculopathy at the L5-S1 level, Spence underwent L5-S1 posterior lumbar interbody fusion surgery, which the employer’s insurance authorized.
Despite the fusion surgery, Spence continued to suffer from chronic pain, radiculopathy, and related symptoms. In December 2017 and February 2018, she underwent spinal cord stimulation (SCS) implantation as her treating pain management physician, Dr. Christopher Kim, determined this necessary. Years of medical treatment followed, including epidural injections, medication management, and SCS adjustments through February 2025.
In February 2025, Dr. Kim recommended a neuromuscular electrical stimulator (NMES) for muscle atrophy, circulation, and pain/muscle spasms related to Spence’s work injury. The claim administrator denied this authorization on March 21, 2025, based on a Physician Review report from Dr. Rebecca Thaxton citing the Official Disability Guidelines (ODG) as showing inconclusive or lacking benefit for NMES. The Workers’ Compensation Board of Review reversed this denial on September 11, 2025, and Thomas appealed.
The Court’s Holding
The court affirmed the Board’s reversal of the NMES denial. Applying the deferential “clearly wrong” standard of review—which presumes agency decisions valid if supported by substantial evidence or rational basis—the court found the Board was not clearly wrong in determining that NMES is medically related and reasonably required for Spence’s compensable injury. The Board had reasoned that Spence underwent authorized fusion surgery and continues to suffer lumbar pain and radicular symptoms, making ongoing treatment necessary.
The court also upheld the Board’s finding that Spence’s treating pain management specialist, Dr. Kim, is in the best position to determine necessary treatment and is more reliable and persuasive than the insurance company’s reviewing physician, Dr. Thaxton. The court rejected Thomas’s argument that the ODG should control treatment decisions, holding that Thomas failed to establish it operates under an Insurance Commissioner-approved managed care plan—a prerequisite under West Virginia regulations to use guidelines other than the state’s W. Va. Code R. § 85-20 treatment guidelines. Additionally, Thomas failed to submit the guidelines it relied upon to the Board for review.
Key Takeaways
- Treating physicians, particularly specialists like pain management doctors, receive significant deference in workers’ compensation disputes over insurance company-retained medical reviewers.
- Employers cannot unilaterally apply external treatment guidelines like ODG without an Insurance Commissioner-approved managed care plan; state workers’ compensation treatment regulations apply by default.
- The “clearly wrong” standard of appellate review is highly deferential to agency determinations supported by substantial evidence, making it difficult to overturn Board decisions.
- Chronic pain conditions and associated medical devices warrant authorization even years after initial injury and multiple prior treatments, provided treating physicians document medical necessity.
Why It Matters
This decision clarifies important boundaries in workers’ compensation litigation: treating physicians have primary authority to determine medical necessity, and insurers cannot circumvent state guidelines by invoking external standards without formal approval. Employers must obtain explicit managed care plan authorization to deviate from statutory treatment protocols. For injured workers with chronic conditions, the ruling reinforces that ongoing treatment innovations may be covered if the treating physician establishes reasonable medical nexus to the work injury—even in cases with extensive prior treatment history.
The decision also signals that courts will carefully scrutinize whether insurers have followed procedural requirements (such as submitting guidelines for Board review) before deferring to cost-control initiatives based on external medical standards. This protects workers from categorical denials based on guidelines the workers’ compensation system has not formally adopted.