                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS


NORMAN E. ARTHUR II,                                                                FILED
                                                                                 November 29, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.)   No. 16-0037 (BOR Appeal No. 2050654)
                   (Claim No. 2014023401)

SERVICE PUMP & SUPPLY COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Norman E. Arthur II, by Edwin H. Pancake, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Service Pump & Supply
Company, Inc., by Bradley A. Crouser, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 22, 2015, in
which the Board affirmed a July 2, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 7, 2014, decision
denying the request for retroactive authorization of a laminectomy and discectomy. The Court
has carefully reviewed the records, written arguments, and appendices contained in the briefs,
and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Mr. Arthur sustained an injury on October 22, 2013, when a crane block struck him in the
back, nearly throwing him into a fifty-foot pit. He was treated for lower thoracic spine, upper
lumbar spine, and mid lumbar spine pain. X-rays taken revealed that Mr. Arthur had mild
multilevel degenerative changes and osteophytosis at L3-4 and L4-5. He was diagnosed with
back pain, thoracic strain, and lumbar strain.


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       On October 25, 2013, Mr. Arthur was treated by Anthony Alberico, M.D., for low back
pain. Dr. Alberico noted that Mr. Arthur had a known disc herniation at L4-5. Dr. Alberico
reviewed an MRI taken on September 11, 2013, (prior to the October 22, 2013, injury). He
described the MRI as showing degenerative changes at L4-5 with a central disc herniation. Dr.
Alberico compared that MRI to another one taken on February 28, 2011, which also showed the
L4-5 disc bulge. Dr. Alberico recommended that Mr. Arthur undergo a laminectomy and
discectomy to treat the herniated disc.

       Mr. Arthur underwent the L4-5 laminectomy and discectomy on January 7, 2014. The
Report of Occupational Injury describing the injury was not completed by a physician until
January 30, 2014. Norman Bell, M.D., noted on the form that Mr. Arthur had a history of chronic
back pain and diagnosed him with lumbar and thoracic sprains. On February 10, 2014, the claims
administrator held the October 22, 2013, injury compensable for lumbar and thoracic sprains.

       Mr. Arthur requested retroactive authorization for the laminectomy and discectomy. The
claims administrator denied this request because it was determined the procedures were
necessary to treat a non-compensable pre-existing condition. Mr. Arthur sought reconsideration
of the decision through the claims administrator’s Grievance Board. The Grievance Board
recommended affirming the denial of the request on May 6, 2014. On May 7, 2014, the claims
administrator again denied the request for retroactive approval of the laminectomy and
discectomy.

        Mr. Arthur has a long history of lumbar spine pain. On May 9, 2006, a treatment note
from St. Mary’s Medical Center stated X-rays taken of Mr. Arthur’s lumbar spine showed mild
disc space narrowing at the L4-5 level consistent with degenerative change. He was treated on
April 11, 2007, for a lower back injury and was diagnosed with muscle spasms in the left lumbar
and posterior thoracic region. On January 31, 2011, Mr. Arthur suffered an injury to his lower
back and was diagnosed with a lumbar and thoracic sprain. An MRI taken of Mr. Arthur’s
lumbar spine on February 28, 2011, found degenerative disc disease with bulging at the L3-L4
levels.

        On March 14, 2014, a review of Mr. Arthur’s medical records was performed by James
Dauphin, M.D. Dr. Dauphin recommended the request for retroactive authorization of the
laminectomy and discectomy be denied because they were procedures meant to treat the pre­
existing disc herniation and not the compensable injury.

        On July 2, 2015, the Office of Judges affirmed the claims administrator’s decision
denying the retroactive authorization. The Office of Judges found that the surgeries were
performed to treat the pre-existing condition of a herniated disc. Two MRIs performed prior to
the compensable injury showed disc herniation at the L4-5 level. Medical reports show that Mr.
Arthur had an extensive history with back problems as far back as 2006, including a prior injury
in 2011 for which he received a permanent partial disability award. Additionally, two days after
the injury Dr. Alberico noted that Mr. Arthur already had a known disc herniation and based on
that diagnosis recommended the laminectomy and discectomy. The Office of Judges determined
that the herniated disc pre-existed the compensable injury. It found that Mr. Arthur had not
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proven by a preponderance of the evidence that the laminectomy and discectomy were meant to
treat the compensable injuries of lumbar and thoracic sprains. The Board of Review affirmed the
Order of the Office of Judges.

       We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. The evidence indicates that Mr. Arthur had a herniated disc that pre-existed his
October 22, 2013, injury. Dr. Alberico viewed two MRIs taken prior to the injury, in February of
2011 and September of 2013, which showed the L4-5 disc herniation. Dr. Dauphin reviewed the
medical records and recommended the request for retroactive authorization be denied because
the procedures were meant to treat the pre-existing condition. None of the treating physicians
determined an aggravation occurred or suggested that the laminectomy or discectomy were
meant to treat the compensable injuries of lumbar and thoracic sprains. The decision of the
Office of Judges as affirmed by the Board of Review is supported by the evidentiary record.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.


                                                                                        Affirmed.

ISSUED: November 29, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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