                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LAWRENCE G. SPENCE,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1117 (BOR Appeal No. 2047055)
                   (Claim No. 2011039373)

CLIFFS LOGAN COUNTY HOLDINGS, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Lawrence G. Spence, by Anne L. Wandling, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Cliffs Logan County Holdings,
LLC, by Sean Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 30, 2012, in
which the Board affirmed a March 21, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 7, 2011,
decision denying Mr. Spence’s request to add right leg radiculopathy and low back pain as
compensable components. 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. Spence worked as an electrician for Cliffs Logan County Holdings, LLC when he fell
on a set of stairs. The claim was held compensable for left knee sprain and left ankle sprain.
Robert McCleary, M.D., concluded that Mr. Spence’s low back pain with right leg radiculopathy
should be compensable because it occurred during physical therapy for the May 16, 2011, work-
related injury. Prasadarao B. Mukkamala, M.D., determined that there were no objective physical
findings to support Mr. Spence’s ongoing subjective complaints and that the back pain
complaints are not causally related to the compensable injury that occurred on May 16, 2011.
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The claims administrator denied Mr. Spence’s request to add right leg radiculopathy and low
back pain as compensable components.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Spence’s right leg radiculopathy and low back pain are not related to the compensable injury but
are preexisting conditions based upon multiple medical records showing he complained of these
same symptoms in the past. On appeal, Mr. Spence disagrees and asserts that the preponderance
of the evidence establishes that his low back pain and right leg radiculopathy should be added as
compensable components because his treating physician, Dr. McCleary, found these diagnoses
related to his work injury. Cliffs Logan County Holdings, LLC maintains that Mr. Spence’s right
leg radiculopathy and lower back pain preexisted his compensable leg injury that occurred on
May 16, 2011.

        The Office of Judges found Mr. Spence’s description of what occurred on June 30, 2011,
at physical therapy was inconsistent with the treatment notes of Appalachian Rehabilitation
Center. The Office of Judges determined that the physical therapist did not send Mr. Spence to a
physician for his back pain as Mr. Spence stated but that he went on his own. The Office of
Judges determined that Mr. Spence’s statement that he never had any previous incident of back
pain with the exception of his motor vehicle accident in 2000 is incorrect. The Office of Judges
found records from Appalachian Regional Hospital dated June 6, 2004, that showed Mr. Spence
had a significant two motor vehicle collision. The Office of Judges further found records from
Appalachian Regional Hospital that showed Mr. Spence was seen on September 21, 2005, and
again in August of 2010 for complaints of back pain radiating down his right leg, which are the
same symptoms that form the basis of his current request. Mr. Spence was also seen for
complaints of back pain at Logan Regional Medical Center in March of 2010. The Office of
Judges concluded that these medical records cast sufficient doubt upon Mr. Spence’s testimony
to show that he has not proven these diagnoses should be added as compensable components
based upon a preponderance of the evidence. The Office of Judges held that Mr. Spence’s right
leg radiculopathy and low back pain are not related to the compensable injury but are preexisting
conditions. The Board of Review reached the same reasoned conclusions in its decision of
August 30, 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: April 2, 2014




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

DISSENTING:
Justice Menis E. Ketchum




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