                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
FRANK JOHNSON JR.,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0092	 (BOR Appeal No. 2049859)
                   (Claim No. 850002847)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MAPLE MEADOW MINING COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Frank Johnson Jr., pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by
Brandolyn Felton-Ernest, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 26, 2015, in
which the Board affirmed a September 11, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 3, 2014,
decision denying Mr. Johnson’s request for authorization of an evaluation by orthopedic surgeon
R. Patel, M.D. 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 that the Board of Review’s decision is based upon a material
mischaracterization of the evidentiary record. This case satisfies the “limited circumstances”
requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a
memorandum decision rather than an opinion.
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       Mr. Johnson injured his lower back in the course of his employment on July 17, 1984,
and was diagnosed with an acute lower back strain. The evidentiary record indicates that
beginning in approximately 1987, Mr. Johnson began complaining of ongoing lower back pain.
On November 26, 2013, Robert Yee, M.D., Mr. Johnson’s primary care provider, requested
authorization for a surgical consultation with Dr. Patel in response to Mr. Johnson’s complaints
of worsening lower back pain. Further, Dr. Yee noted that a lumbar spine MRI performed on
November 1, 2013, revealed a left paracentral disc protrusion at L5-S1, disc bulging at L2-3 and
L4-5, central canal stenosis at L2-5, and neural foraminal stenosis.

       On January 22, 2014, Saghir Mir, M.D., examined Mr. Johnson. Dr. Mir took note of the
degenerative changes revealed in the November 1, 2013, MRI and also noted that lumbar spine
x-rays obtained on November 1, 2013, revealed degenerative disc disease at L5-S1. Dr. Mir
diagnosed Mr. Johnson with chronic lower back pain arising from progressive degenerative
changes in the entire lumbar spine which are attributable to naturally occurring causes. Further,
Dr. Mir opined that Mr. Johnson’s current symptoms are not a result of the July 17, 1984, injury
and arose solely from naturally occurring age-related degenerative changes.

       On February 3, 2014, the claims administrator denied Mr. Johnson’s request for
authorization of an evaluation by Dr. Patel. In its Order affirming the claims administrator’s
decision, the Office of Judges held that the request evaluation by Dr. Patel does not constitute
medically necessary and reasonably required treatment in relation to the July 17, 1984, injury.
The Board of Review affirmed the reasoning and conclusions of the Office of Judges in its
decision dated January 26, 2015.

        The Office of Judges noted that although the November 1, 2013, lumbar spine MRI
revealed lumbar stenosis, a disc protrusion, and disc bulging, Mr. Johnson’s July 17, 1984, injury
was described only as a lower back sprain. The Office of Judges further found that Dr. Mir’s
conclusion that Mr. Johnson’s current condition arises solely from naturally occurring
degenerative changes was persuasive. Finally, the Office of Judges concluded that the evidence
of record does not provide a sufficient basis to determine that Mr. Johnson’s current condition is
related to the July 17, 1984, injury.

        We disagree with the reasoning and conclusions of the Office of Judges as affirmed by
the Board of Review. The results of the November 1, 2013, lumbar spine MRI show that Mr.
Johnson has a left paracentral disc protrusion at L5-S1, disc bulging at L2-3 and L4-5, central
canal stenosis at L2-5, and neural foraminal stenosis. By requesting that the claims administrator
authorize a consultation with an orthopedic surgeon for further evaluation of the lumbar spine in
light of the results of the November 1, 2013, MRI, it appears that Mr. Johnson’s treating
physician, Dr. Yee, related Mr. Johnson’s current condition to the July 17, 1984, lumbar spine
injury. Therefore, an evaluation by an orthopedic surgeon regarding Mr. Johnson’s current
lumbar symptoms is appropriate.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
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of the Board of Review is reversed and the claim is remanded with instructions to authorize an
evaluation by Dr. Patel at Orthopaedic and Spine Surgery Associates.


                                                                          Reversed and remanded.

ISSUED: February 4, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Margaret L. Workman

DISSENTING:
Justice Brent D. Benjamin
Justice Allen H. Loughry II


LOUGHRY, J., dissenting:
        The majority incorrectly reasons that Mr. Johnson is entitled to an evaluation by an
orthopedic surgeon. Although the results of the November 1, 2013, lumbar spine MRI show that
Mr. Johnson has a left paracentral disc protrusion at L5-S1, disc bulging at L2-3 and L4-5,
central canal stenosis at L2-5, and neural foraminal stenosis, there is nothing in the evidentiary
record linking these findings to the compensable July 17, 1984, lumbar sprain. Moreover, the
only evidence of record addressing the findings of the November 1, 2013, lumbar spine MRI in
relation to the July 17, 1984, lumbar sprain, namely the report of Dr. Mir, indicates that Mr.
Johnson’s current condition arises solely from naturally occurring age-related degenerative
changes. The claims administrator, Office of Judges, and Board of Review all correctly
concluded that the record shows that Mr. Johnson’s request for authorization of an evaluation by
an orthopedic surgeon is unrelated to the July 17, 1984, lumbar sprain. Further, because the
record fails to establish that the findings of the November 1, 2013, lumbar spine MRI, as well as
Mr. Johnson’s current symptoms, arise from the July 17, 1984, lumbar sprain, the claims
administrator, Office of Judges, and Board of Review all correctly concluded that authorization
for a consultation with an orthopedic surgeon should not be granted. West Virginia Code § 23-5­
15(c) (2010) provides, in pertinent part:

               If the decision of the board represents an affirmation of a prior
               ruling by both the commission and the Office of Judges that was
               entered on the same issue in the same claim, the decision of the
               board may be reversed or modified by the Supreme Court of
               Appeals only if the decision is in clear violation of constitutional
               or statutory provision, is clearly the result of erroneous conclusions
               of law, or is based upon the board’s material misstatement or
               mischaracterization of particular components of the evidentiary
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              record. The court may not conduct a de novo re-weighing of the
              evidentiary record.

(Emphasis added). Because it is clear that the majority has simply re-weighed the evidence to
find in favor of Mr. Johnson, I respectfully dissent.




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