                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 11, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GEORGE FATULA III,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1385 (BOR Appeal No. 2047204)
                   (Claim No. 2011006521)

MCELROY COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner George Fatula III, by Jonathan C. Bowman, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. McElroy Coal Company, by
Edward M. George, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 22, 2012, in
which the Board affirmed an April 27, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 5, 2011,
decision which held compensable the diagnoses of neck sprain and contusion of face, scalp, and
neck except eyes and denied the request to add the diagnoses cervical disc displacement, brachial
neuritis or radiculitis as compensable components. In a separate December 5, 2011, decision, the
claims administrator denied the authorization for anterior cervical discectomy with fusion and
plating. 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. Fatula worked as a coal miner for McElroy Coal Company. On May 1, 2010, a rock
fell from the mine ceiling and struck Mr. Fatula in the head. The claims administrator held the
diagnoses of neck sprain and contusion of face, scalp, and neck except eyes compensable and
denied the request to add the diagnoses cervical disc displacement and brachial neuritis or
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radiculitis as compensable components of the claim. The claims administrator decision also
denied the authorization for anterior cervical discectomy with fusion and plating.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Fatula has not demonstrated that the cause of surgery was due to the compensable injury nor has
he demonstrated that cervical disc displacement and brachial neuritis or radiculitis should be
found compensable. The Office of Judges also modified the claims administrator’s decision and
found insufficient medical evidence to authorize the surgery. On appeal, Mr. Fatula disagrees
and asserts that Bruce Guberman, M.D., found he had not reached maximum medical
improvement and that the surgery was directly causally related to the compensable injury. Mr.
Fatula further asserts that neck sprain was merely an initial diagnosis prior to diagnostic studies
and that the treating physician filed a diagnostic update for cervical disc displacement and
brachial neuritis or radiculitis. McElroy Coal Company maintains that Mr. Fatula failed to
provide sufficient evidence to authorize the additional diagnoses and that Ronald Hargraves,
M.D., and Dr. Guberman failed to provide any type of explanation as to how the compensable
injury caused the necessity for the surgery.

       Dr. Hargraves and Dr. Guberman requested authorization for the anterior cervical
discectomy with fusion and plating. The Office of Judges found that Dr. Hargraves and Dr.
Guberman failed to provide an explanation of how the compensable injury caused the need for
the surgery. The Office of Judges held that Mr. Fatula failed to provide sufficient medical
evidence to authorize the anterior cervical discectomy with fusion.

        An MRI revealed impressions of advanced multi-level cervical disc disease and canal
stenosis but did not show any herniated discs. Dr. Guberman requested the diagnoses of cervical
disc displacement and brachial neuritis or radiculitis be added as compensable components but
failed to explain how the advanced multi-level cervical disc that was seen on the initial MRI is in
fact due to the compensable injury. The Office of Judges concluded, in light of the diagnostic
studies and lack of any explanation as to how the additional diagnoses are related to the
compensable injury, that Mr. Fatula failed to provide sufficient medical evidence to add cervical
disc displacement and brachial neuritis or radiculitis as compensable components. The Board of
Review reached the same reasoned conclusions in its decision of October 22, 2012. 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:

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




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