                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 17, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
TIMOTHY BERRY,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0801 (BOR Appeal No. 2048073)
                   (Claim No. 2012033847)

GENTLEMAN GENE TRUCKING, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Timothy Berry, by Patrick G. Jacobs, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Gentleman Gene Trucking, Inc., by
Estelle K. McGrath, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 5, 2013, in which
the Board affirmed a January 11, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s June 22, 2012, decision
which rejected 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 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. Berry, a truck driver, was injured in the course of his employment on April 16, 2012,
while moving a mail cart. The employee’s and physician’s report of injury indicates that he
developed mid-back pain that radiated into his hips and knees. The diagnosis was thoracolumbar
strain. Mr. Berry has an extensive history of lower back injuries. Reports of occupational injuries
indicate he injured his back in 1980, 1994, 2000, and 2004. Treatment notes by Timothy Deer,
M.D., indicate Mr. Berry reported severe back pain that began after a motor vehicle accident in
the course of his employment. Dr. Deer diagnosed lumbosacral sprain/strain with a known
history of multilevel disc bulges, facet arthropathy, and stenosis of the lumbar spine. A lumbar
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MRI revealed on October 10, 2005, that Mr. Berry had mild to moderate stenosis and foraminal
narrowing. On June 1, 2005, he was treated for low back and left leg pain. On August 4, 2006, he
reported constant aching pain in his low back and down his left leg. He also had left leg
numbness. A lumbar MRI showed in November of 2005 that Mr. Berry had degenerative
changes and spinal stenosis. In December of 2006, an MRI showed diffuse disc bulges at L3-4
and L5-S1. There was also a diffuse bulge with facet hypertrophy and bilateral foraminal
narrowing at L4-5.

        A treatment note by Leon Kwei, M.D., dated December 10, 2010, indicates that Mr.
Berry was treated for severe pain in his left thigh and hip. He reported no known injury and a
bone scan revealed arthritic changes. On September 10, 2011, seven months prior to the
compensable injury, a lumbar MRI revealed degenerative changes with spondylosis throughout
the lumbar spine with multiple levels of disc space narrowing and disc desiccation. There was a
diffuse bulge at L2-3 with a left paracentral disc protrusion causing severe central canal and
bilateral foraminal stenosis. There was also a disc bulge at L3-4 and L4-5 resulting in moderate
central canal and bilateral foraminal stenosis.

        Following the compensable injury, Mr. Berry was treated by Frank Armbrust, M.D. At
that time, he reported pain in his back, left hip, and left thigh. Dr. Armbrust noted that he had
previously treated Mr. Berry for low back and right leg pain. He reviewed a lumbar MRI and
found a left-sided herniated disc at L2-3. There was also significant spinal stenosis with a disc
protrusion at L2-3 tending toward the left. The MRI was otherwise unchanged from a previous
MRI. Dr. Armbrust diagnosed left mid-lumbar radiculopathy, most likely related to the L3 nerve
root.

       The claims administrator rejected the claim on June 22, 2012. The Office of Judges
reversed the decision by Order dated January 11, 2013, and held the claim compensable for
thoracolumbar strain. The Office of Judges found that Mr. Berry established that he sustained a
compensable injury on April 16, 2012. According to his deposition testimony, the claim
application, and reports from Charleston Area Medical Center, Mr. Berry developed increased
lower back pain and bilateral lower extremity pain and numbness after the work-related injury.
Dr. Kwei examined him on the date of the injury and diagnosed a thoracolumbar strain. The
Office of Judges found no evidence in the record to indicate that Mr. Berry did not injure his low
back on April 16, 2012. It also found no evidence refuting Dr. Kwei’s diagnosis.

        The Office of Judges found that the evidence clearly establishes that the L2-3
herniation/protrusion pre-existed the compensable injury. Specifically, an MRI report dated
September 10, 2011, showed a disc bulge at L2-3 with a left paracentral disc protrusion resulting
in a severe degree of central canal and foraminal narrowing with severe involvement of the left
neural foramina. Also, Dr. Armbrust compared the pre-injury September 10, 2011, MRI with a
lumbar MRI taken after the compensable injury and found it to be unchanged in regard to
neuroforaminal compromise. Dr. Armbrust diagnosed Mr. Berry with lumbar radiculopathy most
likely related to the pre-existing L3 nerve root. The weight of the medical evidence was therefore
found to indicate that his left lower extremity symptoms were the result of the L2-3 disc
protrusion and pre-existed the compensable injury. Lastly, the Office of Judges found that
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though Mr. Berry testified in a deposition that he had no left leg problems prior to the
compensable injury, the evidentiary record indicates otherwise. Specifically, medical reports
dated June 1, 2005; August 4, 2006; December 10, 2010; and September 10, 2011, indicate he
reported left lower extremity pain and/or numbness.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed the decision entered by the Office of Judges by Order dated July 5, 2013.
On appeal, Mr. Berry argues that the Board of Review erred by not remanding the case to the
Office of Judges for consideration of an independent medical evaluation by Constantino Amores,
M.D. In his September 25, 2012, report, Dr. Amores opined that there is a causal connection
between the current complaints and the compensable injury. Mr. Berry also argues that the Board
erred by failing to find that Gentleman Gene Trucking, Inc.,’s disclosure of the report was
untimely and that it had an affirmative duty to disclose the report and file it with the Office of
Judges in a timely manner pursuant to West Virginia Code of State Rules § 93-1-7.3(B)(1)
(2008). West Virginia Code of State Rules § 93-1-7.3(B)(1) provides that the report of an expert
shall be offered into evidence by delivering a copy to the Office of Judges and providing a copy
to the opposing party. Gentleman Gene Trucking, Inc., asserts that the only issue that has been
properly preserved in the instant case is whether the claim should be remanded to the Office of
Judges to reopen for reconsideration of Dr. Amores’s report. Further, Mr. Berry had access to the
report and failed to submit it in a timely manner. Also, Gentleman Gene Trucking, Inc., had no
affirmative duty to submit the report itself.

        After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. Dr. Amores's report was not offered as evidence before the
Office of Judges, was not part of the evidentiary record on appeal, and therefore cannot be
considered by this Court. Mr. Berry argues that Gentleman Gene Trucking, Inc., had an
affirmative duty to submit the report under West Virginia Code of State Rules § 93-1-7.3(B)(1);
however, West Virginia Code of State Rules § 93-1-7.3(B)(1) does not state that a party has an
affirmative duty to submit all evidence in its possession, it merely outlines the proper procedure
for submitting evidence to the Office of Judges and the opposing party. Gentleman Gene
Trucking, Inc., had no affirmative duty to submit Dr. Amores’s independent medical evaluation.
It chose not to submit the report as evidence before the Office of Judges, and Mr. Berry failed to
submit the report in support of his claim. The claim is not remanded to the Office of Judges for
consideration of the report, as Mr. Berry requested, because he had the report prior to the
expiration of the Time Frame Order and simply failed to submit it into evidence. The evidentiary
record indicates that Mr. Berry sustained a thoracolumbar strain in the course of his employment
on April 16, 2012.

        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: March 17, 2015

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




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