                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
LOUIS P. ZACKEY,                                                                October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0033 (BOR Appeal No. 2046228)
                   (Claim No. 2005001243)

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Louis P. Zackey, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
Edward M. George III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 19, 2011, in
which the Board affirmed a July 12, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 10,
2010, decision denying a request for authorization of right and left thoracic facet injections. It
also affirmed the claims administrator’s December 29, 2010, decision denying a request to add
facet dysfunction C7-T4 as a compensable component. 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. Zackey suffered an injury when he was driving a car in an underground coal mine
and hit his head on a steel beam while going approximately fifteen miles per hour. The claim was
held compensable for concussion with no loss of consciousness and neck sprain. On May 15,
2009, Dr. Chalifoux concluded that the type of injury that Mr. Zackey had would have
essentially injured him from C4 to possibly T2-T3. On September 9, 2009, Dr. Chalifoux
concluded that Mr. Zackey’s allowed diagnoses deal with the thoracic spine, and he strongly
suggested authorization to have facet injections on the left side from C7-T1, T1-T2, and T2-T3.
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       The Office of Judges affirmed the claims administrator’s decision dated November 10,
2010, denying the authorization of right and left thoracic facet injections, and the decision dated
December 29, 2010, denying the request to add facet dysfunction C7-T4 as a compensable
component. Mr. Zackey disagrees and asserts that the Board of Review found that there are
records prior to 2009 which mention cervical-thoracic junction pain, and that this directly
contradicts the Office of Judges’ finding that the thoracic area was not mentioned until May 15,
2009, and is grounds for a reversal.

        The Office of Judges concluded that the preponderance of the evidence does not support
the addition of facet dysfunction as a compensable component. This is an injury occurring in
June of 2004 injury, and the evidence shows that the thoracic spine was not mentioned until
2007. Only Dr. Chalifoux found this condition was caused by Mr. Zackey’s work-related injury,
but his medical records do not explicitly state this conclusion until 2009, five years after the
injury. The initial work-related injury was listed as neck sprain and concussion. Ultimately, the
Office of Judges denied the request to add facet dysfunction as a compensable component. The
Office of Judges also denied the request for authorization of thoracic facet injections right and
left because the thoracic spine has not been held compensable, and this treatment is not
reasonably required in relation to a compensable injury. The Board of Review reached the same
reasoned conclusions in its decision of December 19, 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 Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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