                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 24, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOEY C. MILLER,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0410	 (BOR Appeal No. 2050161)
                   (Claim No. 2013007479)

HOBET MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Joey C. Miller, by William Gerwig, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Hobet Mining, LLC, by Henry Bowen,
its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated April 29, 2015, in
which the Board affirmed a January 15, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 29, 2014,
decision denying Mr. Miller’s request to add displaced lumbar disc without myelopathy and
thoracic/lumbosacral neuritis/radiculitis as compensable components of the instant claim. 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. Miller injured his lower back on September 4, 2012, while he was attempting to
move a fuel hose. On October 5, 2012, the claim was held compensable for a lumbar sprain and
sacroiliac sprain. On February 13, 2013, Panos Ignatiadis, M.D., Mr. Miller’s treating physician,
noted that he treated Mr. Miller for back pain in the past, but indicated that he is currently
treating Mr. Miller for back pain of a much longer duration. Dr. Ignatiadis diagnosed Mr. Miller

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with degenerative disc disease, which he opined was aggravated by the September 4, 2012,
injury.

        On October 29, 2013, Trenton Gause, M.D., performed a records review. He noted that
Mr. Miller’s medical history includes a diagnosis of degenerative disc disease and at least one
prior back injury. Additionally, Dr. Gause noted that a lumbar spine MRI performed on October
15, 2012, revealed mild congenital lumbar spine stenosis, endplate edema at L4-5, multiple small
disc protrusions, underlying increasing degenerative changes, and neuroforaminal stenosis.1 He
then opined that the September 4, 2012, injury is consistent with a strain that should have
resolved.

        Paul Bachwitt, M.D., performed an independent medical evaluation on December 11,
2013. He also noted that Mr. Miller has a history of prior lower back injuries. Dr. Bachwitt
further noted that the October 15, 2012, MRI revealed degenerative changes, including small
disc bulges at L3-4 and L4-5 with disc space narrowing at L5-S1. He diagnosed Mr. Miller with
a lumbar sprain/strain superimposed on prior back injuries and pre-existing degenerative
changes. Dr. Bachwitt opined that Mr. Miller’s current symptoms are the result of pre-existing
degenerative changes.

        The claims administrator denied Mr. Miller’s request to add displaced lumbar disc
without myelopathy and thoracic/lumbosacral neuritis/radiculitis as compensable components of
the instant claim on July 29, 2014. Cliff Hill, D.C., Mr. Miller’s chiropractor, wrote a letter to the
claims administrator on August 14, 2014. He indicated that although Mr. Miller reported
symptoms consistent with a lumbar disc herniation prior to the October 15, 2012, MRI, it was
not possible to diagnose him with a disc herniation until diagnostic imaging was complete. Dr.
Hill then indicated that a February 13, 2013, diagnosis update request was submitted in
consideration of the results of the October 15, 2012, MRI.

        In its Order affirming the July 29, 2014, claims administrator’s decision, the Office of
Judges held that Mr. Miller has failed to demonstrate that he sustained the requested additional
diagnoses in the course of and resulting from his employment. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated April 29, 2015. On
appeal, Mr. Miller asserts that the report of Dr. Ignatiadis and the letter authored by Dr. Hill
demonstrate that the diagnoses of displaced lumbar disc without myelopathy and
thoracic/lumbosacral neuritis/radiculitis should be added as compensable components of the
instant claim.

        The Office of Judges noted that multiple physicians have diagnosed Mr. Miller with pre­
existing degenerative disc disease. Specifically, the Office of Judges noted that Dr. Bachwitt
opined that pre-existing degenerative changes are the sole cause of Mr. Miller’s current
symptoms. Additionally, the Office of Judges noted that Dr. Gause characterized Mr. Miller’s
injury as a simple lumbar strain which should have resolved some time ago. After weighing the

1
  The report interpreting the results of the October 15, 2012, lumbar spine MRI is not contained
in the evidentiary record.
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evidence of record, the Office of Judges determined that the evidence of record does not support
a finding that Mr. Miller sustained a displaced lumbar disc without myelopathy and
thoracic/lumbosacral neuritis/radiculitis in the course of and resulting from his employment. We
agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of
Review.

        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: March 24, 2016

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Menis E. Ketchum
Justice Margaret L. Workman




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