                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                July 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
FRED L. LOYD,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1052	 (BOR Appeal No. 2049408)
                   (Claim No. 2011037422)

AKER CONSTRUCTION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Fred L. Loyd, by Stephen New, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Aker Construction, by Gary Nickerson and
James Heslep, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 23, 2014, in
which the Board affirmed an April 17, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 19, 2013,
decision denying authorization of a request to add avascular necrosis of the humeral head and
sciatica as compensable components 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
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. Loyd injured his lower back and right shoulder on May 13, 2011, while installing
cable during the course of his employment as an electrician, and the claim was initially held
compensable for a lumbar sprain and unspecified sprain of the arm/shoulder. Three days after the
compensable injury, Mr. Loyd sought treatment for lower back and right shoulder pain.
Radiographs of the lumbar spine were obtained and revealed multilevel degenerative disc disease
and facet joint arthropathy without evidence of an acute injury. On June 27, 2011, a lumbosacral
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MRI was performed and revealed multilevel advanced lumbar spine degeneration with moderate
canal narrowing at L2-L3 and T12-L1. It also revealed moderate foraminal narrowing at L5-S1.
It was noted that the MRI findings remain unchanged from those of a pre-injury study performed
on February 16, 2011, amid complaints of lumbago, weakness, numbness, and leg pain. On
March 15, 2012, Mr. Loyd underwent a right arthroscopic labral debridement with biceps
tenodesis. A subsequent arthroscopy was performed to correct complications which arose
following the initial arthroscopy, during which the presence of extensive degenerative disease
was noted.

        In June of 2013, Anna Allen, M.D., Mr. Loyd’s treating physician, requested the addition
of avascular necrosis of the humeral head and sciatica as compensable components of the claim
following her diagnosis of sciatica and the April 26, 2012, diagnosis of avascular necrosis of the
right humeral head made by George Bal, M.D. James Dauphin, M.D., performed a records
review on June 10, 2013, and recommended denying the request to add sciatica and avascular
necrosis of the humeral head as compensable components of the claim. Dr. Dauphin noted that
extensive diagnostic studies performed on the lumbar spine all reveal only degenerative changes
with stenosis and opined that Dr. Allen’s diagnosis of sciatica represents a relatively new
complaint. He then opined that there is no relationship between Mr. Loyd’s complaints of
sciatica and the May 13, 2011, compensable injury. Further, Dr. Dauphin noted that only a small
area of the humeral head is necrotic, which he opined is not an uncommon finding. He then
opined that avascular necrosis of the humeral head represents an incidental finding and has no
relationship to the compensable injury involving the soft tissue surrounding the humeral head.
The claims administrator initially denied authorization for Dr. Allen’s request to add avascular
necrosis of the humeral head and sciatica as compensable components of the claim on June 11,
2013.

        On July 16, 2013, the StreetSelect Grievance Board determined that the claims
administrator’s initial denial of the request to add avascular necrosis of the humeral head and
sciatica as compensable components of the claim was appropriate. It determined that the record
contains documented evidence of pre-existing degenerative disease and noted that Mr. Loyd has
been at maximum medical improvement for approximately one year. The Grievance Board also
relied on Dr. Dauphin’s conclusions that the diagnosis of sciatica represents a new finding and
that the diagnosis of avascular necrosis represents an incidental finding. On July 19, 2013, the
claims administrator again denied Dr. Allen’s request to add avascular necrosis of the humeral
head and sciatica as compensable components of the instant claim.

        On October 8, 2013, ChuanFang Jin, M.D., performed a records review. Dr. Jin noted
that the most recent diagnostic imaging of the lumbar spine and right shoulder clearly shows
degenerative disease and opined that the cause of Mr. Loyd’s current symptoms is most likely
advanced degenerative disease of the lumbar spine and right shoulder. Further, she opined that
diagnostic imaging did not reveal the presence of avascular necrosis of the right humeral head
and questioned whether avascular necrosis is truly present. Regarding the request to add sciatica
as a compensable component of the claim, she opined that lumbar spine MRIs performed before
and after the compensable injury are essentially unchanged and both reveal the presence of
degenerative disc disease. Finally, Dr. Jin opined that there is insufficient evidence to link a
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diagnosis of sciatica to the compensable injury and further opined that there is insufficient
evidence to support a diagnosis of avascular necrosis of the humeral head.

       In its Order affirming the July 19, 2013, claims administrator’s decision, the Office of
Judges held that avascular necrosis of the humeral head and sciatica are not compensable
components of the instant claim. The Board of Review affirmed the reasoning and conclusions of
the Office of Judges in its decision dated September 23, 2014. On appeal, Mr. Loyd asserts that
the evidence of record demonstrates that avascular necrosis of the humeral head and sciatica
should be added as compensable components of the instant claim.

        The Office of Judges noted that the record is replete with evidence revealing the presence
of pre-existing degenerative disc disease and also found that the record contains evidence of
degenerative changes present within the right shoulder. In particular, the Office of Judges relied
on the opinions of Dr. Dauphin and Dr. Jin. Regarding the request to add avascular necrosis of
the humeral head, the Office of Judges found that the evidence of record does not support a
definitive diagnosis of avascular necrosis. Notably, the physician who performed the second
right shoulder arthroscopy did not make a diagnosis of avascular necrosis of the humeral head.
The Office of Judges further found that if avascular necrosis is present, the record does not
establish that it arises from the May 13, 2011, compensable injury. Regarding the request to add
sciatica as a compensable component of the claim, the Office of Judges found that the evidence
of record does not establish that sciatica arises from the May 13, 2011, compensable injury, and
determined that Mr. Loyd’s current lumbar symptoms likely arise from the well-documented
presence of degenerative changes contained in the evidentiary record. Moreover, prior requests
from Mr. Loyd’s treating physicians requesting authorization for additional treatment of the
lumbar spine and requesting authorization for a referral for treatment/evaluation of the lumbar
spine have been denied on the basis that his current lumbar spine complaints arise solely from
pre-existing degenerative changes. We agree with the reasoning and conclusions of the Office of
Judges as affirmed by 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: July 9, 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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