                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BILLY GENE SIZEMORE,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0657 (BOR Appeal No. 2048266)
                   (Claim No. 940008036)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

JET COAL SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Billy Gene Sizemore, pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated June 14, 2013, in which
the Board remanded a March 22, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 12, 2012, decision
which denied a request for the medications Levaquin, Prednisone, Combivent, Neurontin, Qvar,
Spiriva, and Theophylline. 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. Sizemore, a roof bolter, was injured in the course of his employment on August 17,
1993, when he was struck by a shuttle car and pinned. He suffered multiple crush injuries,
including a chest wall deformity that caused restrictive lung disease. He requested the
medications Levaquin, Prednisone, Combivent, Neurontin, Qvar, Spiriva, and Theophylline. The
claims administrator denied his request on June 12, 2012, finding that the medications were not
for the treatment of the compensable injury.

        The Office of Judges affirmed the claims administrator’s decision in its March 22, 2013,
Order. It found that a preponderance of the evidence did not support the authorization of the
medications. The medications were found to be primarily for the treatment of asthma and chronic
obstructive pulmonary disease, neither of which are compensable conditions in the claim.
Though Mr. Sizemore suffered a left chest wall deformity, it has been stable over the years. The
Office of Judges found that the treatment notes of his treating physician, Vishnu Patel, M.D., do
not support the conclusion that the medications are necessary to treat the compensable injury.
Furthermore, Dr. Patel agreed with the claims administrator in a phone conference that most of
the treatment he rendered was not for the compensable injury.

        The Board of Review remanded the case to the Office of Judges in its June 14, 2013,
decision. Mr. Sizemore submitted a letter to the Board of Review in which he indicated that two
physicians’ reports should have been considered before the Office of Judges but were not. He
submitted the September 5, 2012, report of Dr. Patel and the January 19, 2012, report of Charles
Porterfield, D.O., both of which support his position. The Board of Review determined that the
reports were not included in the record considered before the Office of Judges. The Board of
Review notified the parties that it was considering Mr. Sizemore’s letter as a motion to remand.
The West Virginia Office of the Insurance Commissioner stated to the Board of Review that it
posed no objection to the motion to remand. The Board of Review therefore found that additional
evidence was necessary for a full and complete development of the facts of the claim. It
accordingly remanded the case to the Office of Judges with instructions to issue a new time
frame Order to allow for a full and complete development of the evidentiary record. It also
ordered the Office of Judges to consider Dr. Patel’s September 5, 2012, report and Dr.
Porterfield’s January 19, 2012, report as well as any additional evidence submitted. 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 20, 2014




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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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