                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JONAH O. ELKINS JR.,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1217 (BOR Appeal No. 2047109)
                   (Claim No. 980044502)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MONTERRA DEVELOPMENT CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Jonah O. Elkins Jr., by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Brandolyn N. Felton, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 21, 2012, in
which the Board affirmed an April 4, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 15,
2011, decision which denied a request to add herniated lumbar disc and unspecified back
disorder, facet joint condition, 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.
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        Mr. Elkins, a construction foreman, sustained an injury to his lower back in the course of
his employment while he was lifting a roll of carpet. His claim was held compensable for
lumbosacral strain. In a letter written on January 5, 1999, Jerry Day, M.D., stated that Mr. Elkins
underwent an MRI which showed disc desiccation with central bulging at L5-S1. He found no
evidence of a distinct herniation. In his treatment notes, R. M. Bellam, M.D., indicated that Mr.
Elkins suffered from a chronic lumbosacral sprain that caused continuous lower back pain. Mr.
Elkins underwent an MRI on March 9, 2007, which showed a mild disc herniation at L3-4 as
well as moderate degenerative disc disease at L5-S1.

        Mr. Elkins was referred to Panos Ignatiadis, M.D., in 2008. In his treatment note, Dr.
Ignatiadis opined that Mr. Elkins’s symptoms were related to his compensable injury. He was
also referred to Richard Bowman II, M.D., who also found that the lumbar disc herniation was
related to the compensable injury. In addition, Dr. Bowman determined that the compensable
injury had caused Mr. Elkins to develop a facet joint condition. Accordingly, he requested that
the conditions be added to the claim. On September 9, 2011, a lumbar spine MRI revealed
degenerative disc disease at L4-5 and L5-S1. The claims administrator denied the request to add
herniated lumbar disc and unspecified back disorder, facet joint condition, as compensable
components of the claim on September 15, 2011.

        The Office of Judges affirmed the claims administrator’s decision in its April 4, 2011,
Order. It found that a review of the medical evidence failed to establish that Mr. Elkins’s
herniated disc developed as the result of his compensable injury. Specifically, Dr. Day’s report
indicated that at that point in time, Mr. Elkins had no distinct herniation. Nine years later, an
MRI revealed a herniated disc at L3-4. The Office of Judges found that Dr. Bellam determined
Mr. Elkins had a herniated L3-4 disc, but he failed to connect the herniation to the compensable
injury, especially given that Mr. Elkins had degenerative changes in his spine at that time. Dr.
Bowman’s report was also found to be unpersuasive to establish the necessary causal connection
between the disc herniation and the compensable injury. Dr. Bowman requested that the
condition be added to the claim but failed to provide a persuasive explanation as to why Mr.
Elkins’s development of a herniated disc nine years later was related to his compensable injury.
He also failed to comment on the presence of degenerative changes, and if that could have
caused the disc herniation. The Office of Judges concluded that Mr. Elkins had degenerative
changes in his spine as established by MRIs taken in 2007, 2008, and 2011. It found that the
reports of Drs. Bellam, Bowman, and Ignatiadis failed to provide sufficient justification to
establish that the disc herniation nine year later was caused by the compensable injury.

        The Office of Judges also determined that Dr. Bowman’s findings and recommendation
that facet joint condition be added as a compensable component of the claim were not persuasive
to establish the necessary causal connection. The treatment was requested eleven years after the
compensable injury. Dr. Bowman failed to provide a specific nexus between Mr. Elkins’s facet
pain and his compensable injury. The Office of Judges discovered that a record review revealed
that Mr. Elkins had consistent lower back pain, but there was no mention of a diagnosis of facet
joint pain until 2009.


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       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 21, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The evidence fails to establish that Mr.
Elkins’s compensable injury caused him to develop a herniated disc and a facet joint condition
nine years later. The decision of the Board of Review is supported by the evidentiary record.

        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: March 12, 2014

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




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