                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               May 24, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LANE W. HALL,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0837	 (BOR Appeal No. 2050304)
                   (Claim No. 2012026135)

ALCON/OMEGA,

Employer Below, Respondent



                             MEMORANDUM DECISION
         Petitioner Lane W. Hall, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alcon/Omega, by T. Jonathan Cook,
its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 30, 2015, in which
the Board affirmed a February 26, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 16, 2014, decision
denying a request to add intervertebral disc disorder with myelopathy at L4-5 and lumbar
radiculopathy as compensable components of Mr. Hall’s claim for workers’ compensation
benefits.1 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.

1
 The Office of Judges refers to intervertebral disc disorder with myelopathy at L4-5 as an L4-5
disc herniation. However, in his diagnosis update request Dr. Shramowiat clearly indicated that
he is specifically requesting that diagnosis code 722.73, which is enumerated within the
International Classification of Diseases, Ninth Revision (ICD-9), be added as a compensable
component of the claim. This diagnosis code specifically references intervertebral disc disorder
with myelopathy.
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        Mr. Hall sustained a compensable lumbar strain/sprain on April 10, 2011, while
repeatedly climbing a ladder when servicing a gantry crane. He is currently requesting that
intervertebral disc disorder with myelopathy at L4-5 and lumbar radiculopathy be added as
compensable components of his claim.

        The evidence of record clearly indicates that Mr. Hall has been receiving ongoing
treatment for lower back pain following an injury that occurred on June 20, 2004. Approximately
four months after the June 20, 2004, injury, he was diagnosed with degenerative disc disease and
a disc herniation at L4-5. Also following the June 20, 2004, injury, Mr. Hall began receiving
treatment from Michael Shramowiat, M.D., for right-sided lower back pain with radiation into
the legs. Dr. Shramowiat noted that Mr. Hall has been diagnosed with a disc herniation at L4-5
and also diagnosed him with lumbar radiculopathy, lower back pain, and a lumbosacral strain. At
the time of the April 10, 2011, injury Mr. Hall was continuing to receive treatment from Dr.
Shramowiat. Additionally, approximately four years after the June 20, 2004, injury, Bruce
Guberman, M.D., performed an independent medical evaluation and diagnosed Mr. Hall with
right-sided L5 radiculopathy and a disc herniation at L4-5.

       Two-and-a-half years after the April 10, 2011, injury, on September 23, 2013, a lumbar
spine MRI was performed and revealed evidence of a disc protrusion at L4-5 with lateral recess
narrowing at the right abutment of the L5 nerve root. Seven months later, Dr. Shramowiat filed a
diagnosis update request listing the date of injury as April 10, 2011. Dr. Shramowiat requested
that the diagnoses of intervertebral disc disorder with myelopathy at L4-5 and lumbar
radiculopathy be added as compensable diagnoses. As evidence, Dr. Shramowiat cited the results
of the September 23, 2013, lumbar spine MRI. The claims administrator denied Dr.
Shramowiat’s request to add intervertebral disc disorder with myelopathy at L4-5 and lumbar
radiculopathy as compensable components of Mr. Hall’s claim on May 16, 2014.

        Following the claims administrator’s decision, Jerry Scott, M.D., performed an
independent medical evaluation. After reviewing Mr. Hall’s medical record, he opined that the
diagnoses of intervertebral disc disorder and lumbar radiculopathy clearly predate the April 10,
2011, injury. Dr. Scott further opined that Mr. Hall’s current symptoms arise from secondary
conditions which pre-existed the April 10, 2011, injury. In particular, he noted that Mr. Hall’s
current complaints are very similar to those he reported prior to the April 10, 2011, injury. Dr.
Scott further noted that Mr. Hall was diagnosed with L5 radiculopathy, degenerative changes in
the lumbar spine, and an L4-5 disc herniation several years before the April 10, 2011, injury.

        In its Order affirming the May 16, 2014, claims administrator’s decision, the Office of
Judges held that Mr. Hall has failed to establish that he developed the diagnoses currently at
issue in the course of and resulting from his employment. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated July 30, 2015. On appeal,
Mr. Hall asserts that the diagnoses at issue should be added as additional compensable
components of the claim because his treating physician, Dr. Shramowiat, has requested that they
be added as additional compensable diagnoses.

                                               2
        The Office of Judges found that the evidence of record clearly demonstrates that the
diagnoses at issue pre-existed the April 10, 2011, injury, which is the subject injury of the instant
claim. Specifically, the Office of Judges noted that there are numerous medical documents
contained within the evidentiary record which establish that Mr. Hall was diagnosed with lower
back pain, L5 radiculopathy, a disc herniation at L4-5, and degenerative disc disease several
years prior to the April 10, 2011, injury. Finally, the Office of Judges found that the opinions
expressed by Dr. Scott corroborate its conclusions that the diagnoses at issue should not be added
as compensable components of Mr. Hall’s claim. We agree with the reasoning and conclusions
of the Office of Judges as affirmed by 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: May 24, 2016

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




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