                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BRADLEY R. HUGHES,                                                              October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0010	 (BOR Appeal No.2046019)
                    (Claim No. 2009090734)

WAYNE VOLUNTEER FIRE DEPARTMENT,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Bradley R. Hughes, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Wayne Volunteer Fire Department,
by Nathanial A. Kuratomi, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 6, 2011, in
which the Board affirmed a May 9, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s July 12, 2010, decision
denying authorization for an MRI of the lumbar spine. 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. Hughes was injured in a motor vehicle accident on May 2, 2009, when transporting a
patient by ambulance. The claim was held compensable for a thigh contusion, insomnia, and
hordeolum of the eye. Mr. Hughes had a prior injury on January 14, 2008, while lifting a patient
weighing approximately 280 to 300 pounds when employed as an emergency medical technician.
His January 14, 2008, injury was held compensable for lumbar sprain. On April 27, 2010, Dr.
Del-Checcolo requested an MRI of the lumbar spine. On May 13, 2010, Dr. Daubin
recommended that both the MRI of the lumbar spine and a reopening of the claim be denied.


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       The Office of Judges affirmed the claims administrator’s decision and held that the
requested medical treatment is not required because Mr. Hughes’s lumbar spine is not a
compensable condition in this claim. On appeal, Mr. Hughes disagrees and asserts that the fact
that compensability has not yet been determined for the lower back is not a sufficient basis to
deny a medical test, and that the MRI likely could determine if the lower back is compensable or
not. Wayne Volunteer Fire Department maintains that Mr. Hughes did not express he had lower
back pain until approximately eight months after the accident, and that his lower back pain is a
preexisting condition from his January 14, 2008, injury.

       The Office of Judges concluded that there is no evidence that Mr. Hughes suffered a
lumbar injury on May 2, 2009. A lumbar injury was never held compensable in the current
claim. The Office of Judges stated that it appeared Mr. Hughes did not express early on in the
claim that he had lower back pain from the May 2, 2009, injury. It determined that the
preponderance of the evidence indicated that Mr. Hughes’s January 14, 2008, injury caused
problems to the lumbar spine, and that based on this evidence the lumbar spine condition appears
more related to his injury of January 14, 2008, than to the compensable injury in this claim.
Ultimately, the Office of Judges held that Mr. Hughes did not met the burden of proof to show
that an MRI of the lumbar spine is medically related to the compensable injury from May 2,
2009. The Board of Review reached the same reasoned conclusions in its decision of December
6, 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 Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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