                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 19, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DOROTHY THORN,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0725 (BOR Appeal Nos. 2046256, 2046640)
                   (Claim No. 2005015145)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

ERGON-WEST VIRGINIA, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Dorothy Thorn, by Raymond Hinerman and Christopher Wallace, her
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The West Virginia Office of the Insurance Commissioner, by Jon Snyder, its attorneys, filed a
timely response.

        This appeal arises from the Board of Review’s Final Order dated May 25, 2012, in which
the Board affirmed August 15, 2011, and November 22, 2011, Orders of the Workers’
Compensation Office of Judges. In its August 15, 2011, Order, the Office of Judges affirmed the
claims administrator’s April 7, 2011, and April 18, 2011, decisions denying requests for a lumbar
CT scan, flexion and extension x-rays, a total body bone scan, and lumbo-sacral orthosis with
right hip spica brace. In its November 22, 2011, Order, the Office of Judges affirmed the claims
administrator’s June 2, 2011, decision denying a request to add degeneration of lumbar disc as a
compensable component of 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
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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.

        Ms. Thorn was injured on October, 8, 2004, while she was lifting a metal pipe. The injury
was held compensable for a lumbosacral sprain on October 25, 2004. An MRI taken the day of
the injury showed that Ms. Thorn had degenerative changes of her lower lumbar spine. Dr.
Joseph E. Grady II found that Ms. Thorn reached maximum medical improvement for her
compensable injury on April 21, 2006. In his assessment, he also found that she suffered from
degenerative disc disease. An MRI taken on September 24, 2007, showed that the degenerative
changes had progressed. Dr. Robert Gerbo’s independent medical evaluation, on August 27,
2009, found that Ms. Thorn suffered from degenerative changes that would have taken years to
develop. It was his opinion that the compensable injury was superimposed on pre-existing
lumbar degeneration.

        The claims administrator denied a request for a lumbar CT scan, flexion and extension x-
rays, and a total body bone scan. The claims administrator also denied a request for lumbo-sacral
orthosis with a right hip spica brace. The Office of Judges, in its August 15, 2011, Order,
affirmed the claims administrator’s decisions. The Office of Judges found that the requested
medical treatments and diagnostic tests were to treat a non-compensable condition. It held that a
preponderance of the evidence demonstrated that the requests were not medically related or
reasonably necessary to treat the compensable injury.

       The claims administrator also denied a request to add degeneration of lumbar disc to the
claim. The Office of Judges affirmed the decision in its November 22, 2011, Order. The Office
of Judges found that the medical evidence did not show a causal connection between the
degenerative changes in Ms. Thorn’s back and her compensable lumbosacral sprain. Multiple
MRIs taken since the injury show degenerative changes caused by a condition that pre-existed
the compensable injury.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges. This Court agrees with the reasoning and conclusions of the Board of Review. The
medical evidence demonstrates that Ms. Thorn had degenerative disc disease before her
compensable injury occurred. She was deemed to have reached maximum medical improvement
for her lumbosacral sprain in April of 2006. The evidence of record fails to show a causal
connection between her compensable injury and the degenerative changes that have developed in
her back over the years.

        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.



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                                      Affirmed.

ISSUED: December 19, 2013

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

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




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