                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
SCOTT A. COLLINS,                                                                February 3, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0185 (BOR Appeal No. 2050779)
                   (Claim No. 2003057057)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Scott A. Collins, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc., by
Edward M. George III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 1, 2016, in
which the Board affirmed an August 14, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 10, 2015,
decision which denied a request for medical treatment as it had been more than five years since
payment of medical benefits. In its Order, the Office of Judges also affirmed the claims
administrator’s April 13, 2015, decision denying a request for an MRI of the lumbar spine and
psychological evaluation for chronic pain coping skills as the claim was barred for medical
treatment since it had been more than five years since payment of medical benefits. 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. Collins, an underground coal miner, was injured on May 19, 2003, when he slipped
on wet slate. An MRI taken in September of 2003 showed bilateral abnormal femoral heads with
a pattern most likely related to avascular necrosis. He underwent a left hip replacement on March
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23, 2004. On June 10, 2009, the West Virginia Supreme Court of Appeals added avascular
necrosis of the left hip as a compensable condition of the claim. Mr. Collins underwent an
independent medical evaluation by Joseph Grady, M.D., on September 3, 2009. Dr. Grady found
him to be at maximum medical improvement. The Office of Judges granted Mr. Collins a 7%
permanent partial disability award on December 21, 2012. On May 29, 2014, the claims
administrator authorized a change of physician from Robert Heflin, M.D., to Mark LoDico, M.D.
Dr. LoDico requested an MRI of the lumbar spine for chronic left hip pain. He also requested
authorization for pain management for chronic pain coping skills on April 2, 2015.

        The claims administrator denied a request for medical treatment on April 10, 2015, as it
had been more than five years since payment of medical benefits. On April 13, 2015, it denied a
request for an MRI of the lumbar spine and psychological evaluation for chronic pain coping
skills as the claim was barred for medical treatment since it had been more than five years since
payment of medical benefits. The Office of Judges affirmed the claims administrator’s decisions
in its August 14, 2015, Order.

        The Office of Judges found that there was no record in this case of any medical treatment
having been performed since January of 2005. Mr. Collins’s counsel mentioned in a closing
argument that a psychiatric evaluation was performed in August of 2013; however, the Office of
Judges found that this was an independent medical evaluation that did not involve treatment. The
Office of Judges determined that since no medical treatment had been provided within five years
of the date of Dr. LoDico’s request, the provisions of West Virginia Code § 23-4-16(a)(4) (2005)
apply. West Virginia Code § 23-4-16(a)(4) provides that:

               With the exception of the items set forth in subsection (d), section three
          of this article, in any claim in which medical or any type of rehabilitation
          service has not been rendered or durable medical goods or other supplies
          have not been received for a period of five years, no request for additional
          medical or any type of rehabilitation benefits shall be granted nor shall any
          medical or any type of rehabilitation benefits or any type of goods or
          supplies be paid for by the commission, successor to the commission, other
          private carrier or self-insured employer, whichever is applicable, if they
          were provided without a prior request. For the exclusive purposes of this
          subdivision, medical services and rehabilitation services shall not include
          any encounter in which significant treatment was not performed.

        The Office of Judges determined that the fact that Mr. Collins underwent bilateral hip
replacements is immaterial. The right hip has not been held compensable and the left hip
replacement, which was compensable, was performed on April 9, 2005. The Office of Judges
found this was way beyond five years from the date of the request for further treatment. When
Dr. Grady examined Mr. Collins in September of 2009, he found that no further surgery would
probably be necessary and there is no record that any has been performed. The claim was
therefore time barred for further treatment pursuant to West Virginia Code § 23-4-16(a)(4). The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on February 1, 2016.
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       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Collins failed to submit any evidence showing that he
received medical treatment for his compensable injury within five years prior to Dr. LoDico’s
request for treatment. His requests for medical benefits were therefore properly denied pursuant
to West Virginia Code § 23-4-16(a)(4).

        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: February 3, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker

DISSENTING:
Justice Menis E. Ketchum




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