Carey v. AAA Paving & Sealing, Inc.

• Docket Number: 24-ICA-436
• Decision Date: 06 June 2025
• Citation: Carey v. AAA Paving & Sealing, Inc., 24-ICA-436 (W. Va. ICA Jun 06, 2025)
• Parties: DOUGLASS CAREY, Claimant Below, Petitioner v. AAA PAVING AND SEALING, INC., Employer Below, Respondent
• Court: West Virginia Intermediate Court of Appeals

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DOUGLASS CAREY, Claimant Below, Petitioner v. AAA PAVING AND SEALING, INC., Employer Below, Respondent

No. 24-ICA-436

West Virginia Intermediate Court of Appeals

June 6, 2025

(JCN 2023020798)

MEMORANDUM DECISION

PetitionerDouglass Carey appeals the October 8, 2024, decision of the Workers' Compensation Board of Review("Board").RespondentAAA Paving and Sealing, Inc.("AAA") timely filed a response.^[1] Mr. Carey did not file a reply.The issue on appeal is whether the Board erred in affirming the claim administrator's order, which denied authorization for a walk-in jacuzzi tub and shower and replacement of Mr. Carey's front porch boards.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4(2024).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 Carey was employed as a foreman by AAA.On May 8, 2023, Mr Carey was admitted to Cabell Huntington Hospital with burns sustained when a dump truck hit a power line, knocking the transformer and high voltage power line onto the paver that he was operating.The incident caused second and third-degree burns over approximately 36% of Mr. Carey's body.A cervical CT showed possible rotary subluxation.

Cabell Huntington Hospital reports dated May 12, 2023, May 16, 2023, May 18, 2023, May 23, 2023, May 24, 2023, May 28, 2023, and May 30, 2023, indicate that Mr. Carey underwent multiple surgeries, including a right mid-forearm amputation for third-degree electrical burns to his bilateral upper extremities from his forearms to his fingers, abdomen, left back and shoulder, and bilateral lower extremities.

Mr. Carey completed an Employees' and Physicians' Report of Occupational Injury form on May 19, 2023.Mr. Carey indicated that he sustained various injuries while at work on May 8, 2023, but the worst injuries were to his hands, which required right hand amputation.The physician's portion was completed on the same date by medical personnel at Cabell Huntington Hospital.The nature of the injury was listed as electrocution, and the body parts affected were right body and entire body.The diagnoses were burn T30.0, trauma T1.90XA, and burn T31.32.

By order dated May 22, 2023, the claim administrator held the claim compensable for burns and trauma.

On October 20, 2023, Kelsey Parente, PA-C, prescribed a walk-in jacuzzi tub and shower for Mr. Carey as medically necessary for his care.On December 19, 2023, the claim administrator issued an order denying authorization for the walk-in jacuzzi tub and shower, and denying replacement of Mr. Carey's front porch boards on the basis that there was no medical evidence to explain why they were medically necessary.Mr. Carey protested this order.

Jennifer Lultschik, M.D., performed an independent medical evaluation ("IME") of Mr. Carey on April 29, 2024, at the request of AAA.Dr. Lultschik noted that Mr. Carey currently had a thirty-six-inch square shower that requires him to stand, and he would prefer a fixture that would permit him to sit on a shower chair and soak in a jacuzzi tub.Dr. Lultschik noted that since Mr. Carey's discharge from the hospital, he had been managing his shower hygiene with some assistance, without the onset of illness.Dr. Lultschik stated that with "the various means and implements available for disabled persons with limited mobility to reach their back and groin areas, [Mr. Cary's] continued use of his existing shower is both possible and practical."Dr. Lultschik concluded that it was not medically necessary or reasonable to replace Mr. Carey's existing shower and install a separate jacuzzi tub with a walk-in fixture.

Mr. Carey completed a notarized statement on July 30, 2024, which indicated that a walk-in jacuzzi tub and shower would enable him to clean himself safely and without assistance.The affidavit states that Mr. Cary cannot grip with his left hand, that he cannot use his prosthetic right hand in the shower, and that he is at risk of falling while bathing.Further, Mr. Carey stated that his nurse case manager indicated that his front porch boards need to be replaced because they are old.

On October 8, 2024, the Board affirmed the claim administrator's December 19, 2023, order, which denied the request for a walk-in jacuzzi tub and shower and replacement of front porch boards because medical necessity was not established.^[2] Mr. Carey now appeals the Board's order.

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

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