                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
MURRAY AMERICAN ENERGY, INC.,                                                    November 29, 2016
                                                                              RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 15-1150 (BOR Appeal No. 2050477)
                    (Claim No. 2013035112)

CHARLES PERKINS,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Murray American Energy, Inc., by Aimee M. Stern and Denise D. Pentino, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Charles Perkins, by his attorney, Robert Stultz, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 28, 2015, in
which the Board affirmed the May 6, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s July 22, 2014,
decision denying the request to reopen the claim and the claim administrator’s November 10,
2014, decision denying the addition of lumbar herniated disc and lumbar radiculopathy as
compensable conditions. 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. Perkins, a coal miner, injured his lumbar spine on June 21, 2013, when he was lifting
a hydraulic jack. He was treated in the emergency room on June 22, 2013, and diagnosed with
lumbosacral radiculopathy. The employee’s and physician’s report of injury lists a diagnosis of
lumbar radiculopathy. Mr. Perkins sought treatment from John H. Manchin, D.O., his family
physician. Dr. Manchin ordered a CT scan which revealed multilevel degenerative disc and facet
disease in the lumbar spine with a disc bulge in the left foraminal zone of the L4-L5 encroaching
on the left L4 nerve root.
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        The claim was accepted as compensable for a lumbar strain. Mr. Perkins continued to
work for the employer while he treated with Dr. Manchin. He received temporary total disability
benefits during the periods of time in which he was unable to work. Dr. Manchin eventually
referred him to John Brick, M.D., a neurologist. On August 29, 2013, Dr. Brick diagnosed
lumbago and requested an MRI. The October 2, 2013, lumbar MRI revealed multilevel
degenerative changes including a broad-based disc bulge at L3-L4 and an asymmetric disc bulge
at L4-L5 extending to the left neuroforamen with a left foraminal disc protrusion abutting and
likely compressing the exiting left L4 nerve root at L4-L5.

        Dr. Brick referred Mr. Perkins to Richard Vaglienti, M.D., for pain management. He
performed two epidural steroid injections. When those did not provide sustained significant
relief, Mr. Perkins was referred to Russell Biundo, M.D., a physical medicine and rehabilitation
specialist. Dr. Biundo saw Mr. Perkins for the first time on May 21, 2014. Dr. Biundo diagnosed
left L5 radiculopathy, most likely secondary to the disc protrusion to the left L5-S1 foramen. He
recommended a left L5 nerve root injection followed by physical therapy. Mr. Perkins did not
have the nerve root injection, but he responded well to physical therapy and Neurontin. Dr.
Biundo released him to return to work with no restrictions on August 22, 2014.

       Bill Hennessey, M.D., performed a medical records review on November 11, 2014. In his
opinion, Mr. Perkins did not have a lumbar disc herniation. He had left L4 radiculopathy but that
was caused by the degenerative changes, not the work injury.

        Mr. Perkins submitted a reopening application requesting an additional period of
temporary total disability benefits on July 3, 2014. On July 22, 2014, the claims administrator
rejected the request because the findings of degenerative conditions on the MRI were not
compensable. On August 29, 2014, Dr. Biundo requested lumbar radiculopathy and lumbar
herniated disc be added as compensable conditions in the claim. The claims administrator
rejected that request on November 10, 2014, because the requested diagnoses were not related to
the claim. This decision was based on the June 26, 2013, CT scan showing multilevel
degenerative disc and facet disease.

        In its May 6, 2015 Order, the Office of Judges reversed the claims administrator’s
rejection of the reopening for additional temporary total disability benefits and reversed the
claims administrator’s denial of the request to add lumbar radiculopathy and herniated disc as
secondary diagnoses. It found the opinion of Dr. Biundo to be the most persuasive. Dr. Biundo
determined Mr. Perkins needed additional physical therapy and diagnostic testing for the work
injury. He also opined that the lumbar radiculopathy and lumbar herniated disc were related to
the injury. Therefore, the claims administrator erred in its denial of the additional period of
temporary total disability benefits and its denial of the request to add the compensable
conditions. The Office of Judges ordered the claim be reopened for temporary total disability
benefits for the period from June 2, 2014, through July 7, 2014, and for such additional periods
as substantiated by proper medical evidence. It also ordered the claims administrator enter an
Order adding lumbar radiculopathy and lumbar herniated disc as compensable conditions in the
claim.
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        The Board of Review adopted the Office of Judges’ findings of fact and conclusions of
law in its October 28, 2015, decision affirming its Order. We agree with the reasoning and
conclusions of the Office of Judges as affirmed by the Board of Review. Mr. Perkins was
originally diagnosed with lumbar radiculopathy and his symptoms have been consistent since the
date of injury. He returned to work when he was able. The medical evidence supports the
addition of the compensable diagnoses and additional periods of temporary total disability
benefits.

        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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