                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               March 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BRIAN DAWSON,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0500 (BOR Appeal No. 2048978)
                   (Claim No. 2012022403)

WINCHESTER MINE, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Brian Dawson, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Winchester Mine, LLC, by Henry C.
Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 28, 2014, in
which the Board reversed a November 13, 2013, Order of the Workers’ Compensation Office of
Judges and reinstated the claims administrator’s January 22, 2013, decision denying the addition
of lumbar intervertebral disc syndrome as a compensable condition of the claim. In its Order, the
Office of Judges had reversed the claims administrator’s decision and added the condition to the
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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        Mr. Dawson worked for Winchester Mine, LLC. On January 10, 2012, Mr. Dawson felt a
pull in his lower back when he bent over to hang fly pad. The following day, Mr. Dawson was
treated at Chiropractic, Inc., and was diagnosed with a low back sprain. Mr. Dawson filed an
application for workers’ compensation benefits based on this diagnosis. A week after the injury,
an MRI was taken of Mr. Dawson’s lumbar spine. Mercedes Ramos, M.D., found that the MRI
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revealed a shallow posterior protrusion at the L5-S1 disc as well as facet arthropathy at multiple
levels. Stephen B. Meisel, M.D., also considered the MRI results and found that the disc
protrusion was most likely related to degenerative disc disease caused by a prior injury. Dr.
Meisel found that the degenerative changes present on the MRI could not have related to the
January 10, 2012, injury because they would have taken longer to develop. Dr. Meisel concluded
that the L5-S1 disc protrusion occurred prior to the January 10, 2012, injury. The claims
administrator then held the claim compensable for a lumbar sprain. Following this decision, Mr.
Dawson was treated by Rocky Sexton, D.C., who requested that lumbar intervertebral disc
syndrome without myelopathy be added as a compensable condition of the claim in order to treat
Mr. Dawson’s disc protrusion. Rajesh V. Patel, M.D., also treated Mr. Dawson and determined
that his disc protrusion would be covered under the diagnosis code for lumbar intervertebral disc
syndrome. Paul Bachwitt, M.D., then evaluated Mr. Dawson and determined that a lumbar strain
should be the only compensable condition of the claim. Dr. Bachwitt found that Mr. Dawson had
degenerative changes in his spine and did not believe the disc protrusion present on the MRI was
significant. On January 22, 2013, the claims administrator denied Dr. Sexton’s request to add
lumbar intervertebral disc syndrome as a compensable condition of the claim. Following this
decision, Dr. Sexton issued a report in which he admitted that he had treated Mr. Dawson for
lower back pain since 2006. However, he found that Mr. Dawson’s symptoms following the
January 10, 2012, injury were different than his prior pain. Dr. Sexton specifically found that Mr.
Dawson had developed right leg pain and numbness following the injury, which indicated, in his
opinion, that the disc protrusion was a new condition related to the compensable injury. On
November 13, 2013, the Office of Judges reversed the claims administrator’s decision and added
lumbar intervertebral disc syndrome as a compensable condition of the claim. The Board of
Review reversed the Office of Judges’ Order and reinstated the claims administrator’s decision
on April 28, 2014, leading Mr. Dawson to appeal.

        The Office of Judges concluded that Mr. Dawson showed that he developed lumbar
intervertebral disc syndrome without myelopathy in the course of and as a result of his
employment. The Office of Judges based this conclusion on the diagnostic update request of Dr.
Sexton. The Office of Judges determined that the diagnosis code for intervertebral disc syndrome
properly covered the L5-S1 disc protrusion that appeared on the MRI following the January 10,
2012, injury. The Office of Judges also found Dr. Sexton’s opinion, that the disc protrusion was
related to the compensable injury, to be persuasive. It considered the report of Dr. Meisel, but it
did not rely on his opinion because it found that there was no evidence in the record that Mr.
Dawson had suffered a prior injury to which the disc protrusion could be related.

       The Board of Review concluded that the Office of Judges was clearly wrong in view of
the evidence in the record as a whole. The Board of Review based this determination on the
opinions of Dr. Bachwitt and Dr. Meisel. The Board of Review specifically relied on Dr.
Meisel’s opinion that the disc protrusion was related to pre-existing degenerative changes.

       The decision of the Board of Review was based on a material misstatement or
mischaracterization of the evidentiary record. Mr. Dawson has presented sufficient evidence to
demonstrate that he developed lumbar intervertebral disc syndrome in the course of and resulting
from his employment in conjunction with the January 10, 2012, injury. The MRI taken a week
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after the compensable injury revealed a shallow disc protrusion at the L5-S1 disc, and Dr.
Sexton’s report sufficiently showed that this condition was causally connected to the
compensable injury. The Office of Judges was within its discretion in adding lumbar
intervertebral disc syndrome as a compensable condition of the claim. The opinions of Dr.
Meisel and Dr. Bachwitt were not sufficiently supported by the remainder of the evidence in the
record to justify the Board of Review’s reversal of the Office of Judges’ Order.

       For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of
the Board of Review is reversed and remanded with instructions to reinstate the November 13,
2013, Order of the Office of Judges which added lumbar intervertebral disc syndrome as a
compensable condition of the claim.

                                                                        Reversed and Remanded.

ISSUED: March 4, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Robin J. Davis
Justice Brent D. Benjamin




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