                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES SONES,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0655 (BOR Appeal No. 2047982)
                   (Claim No. 2011007802)

LEDCOR HOLDINGS (USA) LTD.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner James Sones, by Robert L. Stultz, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Ledcor Holdings (USA) LTD., by Maureen
Kowalski, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 20, 2013, in which
the Board affirmed a December 13, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 9, 2012, decision
which denied a request to reopen the claim for temporary total disability benefits from August
17, 2010, to the present. In its Order, the Office of Judges also affirmed the claims
administrator’s March 9, 2012, decision which denied a request to add displaced lumbar disc,
lumbar spondylosis, and cervical spondylosis without myelopathy to 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.

       Mr. Sones, a construction worker, was injured in the course of his employment when he
slipped and fell down a hill on August 17, 2010. His claim was held compensable on a no lost
time basis for lumbar, cervical, and left shoulder sprains/strains by an Order of the Office of
Judges on November 14, 2011. In that Order, the Office of Judges also held that the medical
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evidence failed to show that Mr. Sones was temporarily and totally disabled. Ledcor Holdings
(USA) LTD., offered Mr. Sones light duty work following his injury, which he utilized for a
short period before leaving the position without notification.

        On January 5, 2012, Jessica Thomas, C.F.N.P., diagnosed Mr. Sones with lumbar
spondylosis, cervical spondylosis without myelopathy, and displaced lumbar disc. Her treatment
note indicates that a cervical MRI revealed mild spondylosis and foraminal narrowing, and a
lumbar MRI revealed severe degenerative disc disease and disc herniations causing stenosis. She
requested a diagnosis update for the conditions. Based upon Ms. Thomas’s findings, Mr. Sones
filed to reopen his claim for temporary total disability benefits from August 17, 2010, to the
present based upon an aggravation or progression of his condition and facts not previously
considered. He also requested a reopening for medical benefits; however, he indicated that he
had suffered no new illness or injury. The form was signed by Ms. Thomas who also indicated
that there had been no aggravation or progression of a compensable injury since Mr. Sones was
released to return to work days after his work-related injury. Mr. Sones testified in a deposition
on April 19, 2012, that his pain had somewhat worsened since his compensable injury and stated
that he had not been involved in any accidents since August 17, 2010.

        David Collipp, M.D., performed an independent medical evaluation of Mr. Sones on June
28, 2012. At that time, Mr. Sones reported pain in his thoracic, lumbar, and cervical spine. Dr.
Collipp diagnosed left shoulder strain and found that Mr. Sones reached maximum medical
improvement three months after the compensable injury. He found no permanent impairment
from the injury and opined that the neck and low back complaints are not casually related to the
compensable injury. He did find that the medical records indicate Mr. Sones has cervical and
thoracic strains but those strains do not result in permanent impairments. He determined that
spondylosis, disc displacement, myelopathy, and radiculopathy are not casually connected to the
work-related injury. Dr. Collipp noted that the MRIs Ms. Thomas relied upon were not made
available for his review.

        The claims administrator denied a request to reopen the claim for temporary total
disability benefits from August 17, 2010, to the present in its March 9, 2012, decision. In another
decision of the same date, the claims administrator denied a request to add displaced lumbar disc,
lumbar spondylosis, and cervical spondylosis without myelopathy to the claim. The Office of
Judges affirmed both of the claims administrator’s decisions in its December 13, 2012, Order.

        The Office of Judges found that the claim was held compensable on a no lost time basis
by an Office of Judges’ decision. In that decision, the Office of Judges also determined that there
was no evidence demonstrating that Mr. Sones was entitled to temporary total disability benefits.
In the instant case, Mr. Sones submitted medical reports from Ms. Thomas in which she opined
that he was temporarily and totally disabled from August 17, 2010, to the present. Neither she
nor Mr. Sones indicated that he had sustained an aggravation or progression of his compensable
injury. The Office of Judges determined that since Ms. Thomas did not begin treating Mr. Sones
until January 5, 2012, her assertion that he was temporarily and totally disabled before that date
was not credible. It did find that she could reasonably represent that he was temporarily and
totally disabled from January 5, 2012, to the present; however, she does not allege that he
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suffered an aggravation or progression of his compensable injury. She stated that Mr. Sones’s
disabling conditions involve a lumbar disc displacement, lumbar spondylosis, and cervical
spondylosis without myelopathy. The Office of Judges determined that nothing in Ms. Thomas’s
report indicates Mr. Sones is disabled from returning to light duty work based upon his
compensable injuries.

        The Office of Judges noted that the diagnosis update was requested by Ms. Thomas, not
Richard Clatterbuck, M.D., for whom she worked. The evidence does not show that Dr.
Clatterbuck had any direct involvement in this case. The Office of Judges also noted that the
cervical and lumbar MRIs that Ms. Thomas relied upon are not of record. It was therefore
determined that Dr. Collipp’s opinion was of greater evidentiary value than that of Ms. Thomas
and that the preponderance of the evidence failed to establish a causal connection between the
requested diagnoses and the compensable injury.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its May 20, 2013, decision. We agree with the reasoning and
conclusions of the Board of Review. There is no indication that Mr. Sones suffered a progression
or aggravation of his compensable injury that would justify a reopening of his claim for
temporary total disability benefits. Additionally, the evidentiary record fails to show that the
requested diagnoses are causally connected to the compensable injury.

        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 20, 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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