                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BRIAN K. MERRITT,                                                               October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0068 (BOR Appeal No. 204306)
                   (Claim No. 2008038066)

VILLAGE OF BARBOURSVILLE,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Brian K. Merit, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The Village of Barboursville, by
Steven K. Wellman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 23, 2011, in
which the Board affirmed an August 4, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 14, 2010,
decision denying a reopening of the claim for temporary total disability benefits, and its
December 7, 2010, decision denying a request for a lumbar fusion. 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.

        On March 27, 2008, Mr. Merritt sustained an injury while lifting in the capacity of his
employment for the Village of Barboursville. The claim was held compensable for a lumbar
strain/sprain. On September 13, 2008, Dr. Walker concluded Mr. Merritt had reached maximum
medical improvement. On May 11, 2010, Dr. Thaxton recommended that Mr. Merritt’s current
symptoms appear more likely than not to be due to a preexisting condition. On October 27, 2010,
Dr. Thaxton concluded that payment for the lumbar fusion surgery would not fall under this
claim.

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        The Office of Judges affirmed the claims administrator’s decisions dated May 14, 2010,
and December 7, 2010, and held that Mr. Merritt has not sustained an aggravation or progression
of a compensable component, nor has he shown facts not previously considered to entitle him to
temporary total disability benefits, and that his lower back condition is attributable mostly to
preexisting non-compensable degenerative disc problems. On appeal, Mr. Merritt disagrees and
asserts that the medical evidence supports a finding that he has suffered an aggravation or
progression of his condition which requires surgical treatment, and that the evidence does not
support a finding that his degenerative changes are the cause of his disability and need for
surgery.

        The Office of Judges concluded that Mr. Merritt has a history of back problems that have
required multiple emergency room visits, and that the evidence is persuasive that his preexisting
condition prompted the recommendation for surgery. Mr. Merritt has a history of degenerative
changes as shown on an MRI dated May 5, 2008, and a progression of these degenerative
changes is shown on an MRI dated April 13, 2010. The Office of Judges concluded that the
degenerative changes are not a compensable condition. The Office of Judges relied on Dr.
Walker’s recommendation that Mr. Merritt had reached maximum medical improvement, and
Dr. Thaxton’s recommendation that the current symptoms appear more likely than not to be due
to a preexisting condition. Ultimately, the Office of Judges concluded that the weight of the
evidence supports a denial of authorization for lumbar fusion and temporary total disability
benefits. The Board of Review reached the same reasoned conclusions in its decision of
December 23, 2011. We agree with the reasoning and conclusions of 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: October 4, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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