                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10, 2014

                                                                            RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

LARRY BEDILION,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0877 (BOR Appeal Nos. 2047559, 2047568, 2047742,
                                    2047791, 2048219)
                   (Claim No. 2012016649)

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Larry Bedilion, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
James W. Heslep and Gary W. Nickerson, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 2, 2013, in
which the Board affirmed a July 31, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 14,
2011, decision, which held the claim compensable for neck sprain and excluded the diagnosis of
loss of consciousness. The Board of Review also affirmed a July 31, 2012, Order of the
Workers’ Compensation Office of Judges, which affirmed the claims administrator’s January 24,
2012, decision closing the claim for temporary total disability benefits. The Board of Review
also affirmed a September 20, 2012, Order of the Workers’ Compensation Office of Judges,
which affirmed the claims administrator’s April 5, 2012, decision denying authorization for
cervical surgery. The Board of Review also affirmed an October 19, 2012, Order of the Workers’
Compensation Office of Judges, which affirmed the claims administrator’s April 11, 2012,
decision denying a petition to reopen the claim for temporary total disability benefits. The Board
of Review also affirmed a March 5, 2013, Order of the Workers’ Compensation Office of
Judges, which affirmed the claims administrator’s March 29, 2012, decisions holding the claim
compensable for neck sprain and excluding the diagnoses of cervical disc displacement,
cervicalgia, displacement of lumbar intervertebral disc without myelopathy, unspecified chest
pain, and other musculoskeletal symptoms referable to the limbs. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.
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       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. Bedilion, a coal miner, was injured in the course of his employment on October 6,
2011, when he walked into a roof strap. The claim was held compensable for cervical strain. An
incident report dated October 6, 2012, indicates Mr. Bedilion was knocked onto his back after he
hit his head. He cut his nose and had pain in his right ribs, neck, and shoulder. There was no
mention of loss of consciousness. He was not seen by a physician and continued to work. His
supervisor’s injury report from the date of the injury states that Mr. Bedilion hit his head on a
roof strap and was knocked onto his back. He did not seek medical treatment and there was no
mention of loss of consciousness.

        Mr. Bedilion first sought medical treatment approximately one month after the
compensable injury occurred. On November 2, 2011, he was treated at Ruby Memorial Hospital
by Megan Kirch, M.D. He reported headaches, neck pain, fatigue, confusion, blurred vision, and
right anterior chest wall pain following a work-related injury one month prior. He asserted that
he lost consciousness, but he did not seek medical attention. A CT of the head was normal. A
cervical CT showed no acute traumatic injury to the spine, advanced multi-level degenerative
changes with moderate central canal stenosis at C6-7, and severe left neural foraminal
narrowing. Mr. Bedilion reported that he had chronic neck pain from a previous motor vehicle
accident. Dr. Kirch diagnosed multiple neurologic symptoms with supporting physical exam
findings for intracranial hemorrhage, ischemia, degenerative neurologic disease, or post-
concussive syndrome. A consultation with neurology was arranged, but Mr. Bedilion stated that
he had to leave the hospital immediately due to a family emergency. Mr. Bedilion was also
treated that day by William Dickey, M.D., who initiated a neurological consultation, but Mr.
Bedilion stated that he had to leave to go to work and was discharged against medical advice.

        Mr. Bedilion was treated by John Martin, D.O., on November 6, 2011. Dr. Martin stated
that he complained of neck, head, back, and leg pain. He was referred to a neurosurgeon. By
November 13, 2011, Mr. Bedilion had developed severe neck pain and surgery was
recommended. No mention was made of Mr. Bedilion’s visit to Ruby Memorial Hospital or the
cognitive symptoms he reported that day. Michael Oh, M.D., performed a neurological
consultation on November 23, 2011. Mr. Bedilion reported significant neck pain and right lower
extremity pain. A cervical MRI showed severe cervical stenosis at C3-4 with intrinsic cord
changes on the right side. He also had stenosis from C4 to C7 with a left-sided disc herniation at
C6-7. Dr. Oh opined that he had pre-existing cervical stenosis that was aggravated by his work-
related injury. He recommended fusion from C3 to C7. A second opinion was obtained on
December 9, 2011 from Francis Ferraro, M.D. Dr. Ferraro stated in his treatment note that he
previously operated on Mr. Bedilion for a lumbar disc herniation. He reported that he developed

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pain in his neck, right side of his chest, lower back, and lower extremity following a work-
related injury. Dr. Ferraro deferred an opinion on surgery pending spinal CT scans.

        A record review was completed by Christopher Martin, M.D., on January 13, 2012. Dr.
Christopher Martin noted that there were several sources of conflicting information in this case.
Mr. Bedilion reported loss of consciousness following the injury, however, witnesses stated that
he did not lose consciousness. When he presented to Ruby Memorial Hospital’s emergency room
his main complaint was cognitive dysfunction. When he was treated by John Martin, D.O., three
days later he reported that his main problem was neck and back pain. Further, Mr. Bedilion did
not seek treatment for one month following the work-related injury. Dr. John Martin found this
to be inconsistent with significant trauma to either the cervical spine or head. Significant
symptoms would have developed much faster and required treatment. Mr. Bedilion also had a
history of poor compliance. He left the emergency room before a neurological consultation could
be performed and it is unclear why he left. He failed to follow up as recommended and did not
report his symptoms on the day of injury to Dr. John Martin when he next saw him. Dr.
Christopher Martin opined that Mr. Bedilion did not suffer a closed head injury on the date of the
work-related injury. There is no corroborating information to support a loss of consciousness, he
did not miss any work, he did not seek treatment for approximately one month, and imaging
studies of the brain were normal. Dr. John Martin also opined that Mr. Bedilion sustained a
cervical strain as a result of his compensable injury from which he has fully recovered. Further,
he stated that the degenerative changes are in no way related to the compensable injury and the
requested surgery is solely for the treatment of the pre-existing condition. The work-related
accident did not aggravate the pre-existing degenerative changes as evidenced by the fact that
Mr. Bedilion did not seek treatment for over one month.

        Dr. John Martin opined in a February 24, 2012, letter that, although Mr. Bedilion had
significant pre-existing degenerative disc disease, his current symptoms did not develop until his
work-related injury. He requested the addition of cervical disc displacement, cervicalgia,
unspecified chest pain, displacement of lumbar intervertebral disc without myelopathy, and other
musculoskeletal symptoms referable to the limbs to the claim. Dr. Ferraro agreed in an April of
2012 treatment note that Mr. Bedilion’s symptoms were the result of an aggravation of his pre­
existing, previously asymptomatic cervical spondylitic disease.

        A total spine myelogram and postmyelogram CT performed in April of 2012 revealed a
large central and right-sided osteophyte disc complex at C3-4 causing compression of the right
side of the spinal cord as well as significant right C3-4 foraminal narrowing. There was also a
disc bulge at C4-5 indenting the thecal sac. There was a central and right-sided disc herniation
osteophyte complex at C5-6 causing some spinal cord compression and compromise of the
neural foramen. Lastly, there was a large osteophyte on the left side at C6-7 with compression.

        In a July 31, 2012, Order, the Office of Judges affirmed the claims administrator’s
December 14, 2011, decision holding the claim compensable for neck sprain and excluding as a
compensable diagnosis concussion with loss of consciousness. The Office of Judges determined
that a preponderance of the evidence did not support the addition of additional diagnoses to the
claim. The Office of Judges found that Mr. Bedilion did not mention loss of consciousness in the
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mine injury report, dated October 6, 2011. His supervisor also failed to mention loss of
consciousness in his report. Further, Mr. Bedilion finished his shift the day of the compensable
injury and did not seek treatment for approximately one month. In his November 2, 2011, visit to
Ruby Memorial Hospital, Mr. Bedilion reported cognitive problems and blurred vision. Mr.
Bedilion, however, did not mention any cognitive problems or blurred vision as he reported at
Ruby Memorial Hospital in his treatment with Dr. John Martin, Dr. Oh, and Dr. Ferraro. The
Office of Judges also found that Mr. Bedilion’s severe degenerative spine changes were
unrelated to his compensable injury.

        In a July 31, 2012, Order, the Office of Judges affirmed the claims administrator’s
January 24, 2012, decision closing the claim for temporary total disability benefits. The Office of
Judges found that the only compensable condition in the claim was cervical sprain and the claim
was closed for temporary total disability benefits because there was no evidence that Mr.
Bedilion was disabled for more than three days. He finished his shift the day of the injury and
continued to work until November 1, 2011. The Office of Judges stated that Dr. Christopher
Martin opined that it was highly unlikely that Mr. Bedilion could have continued work for
another month if his work-related injury aggravated his pre-existing severe degenerative spine
condition. The Office of Judges noted that when Mr. Bedilion first sought medical treatment at
Ruby Memorial Hospital, he complained of cognitive problems, blurred vision, and confusion.
Further, he discharged himself from the hospital against medical advice and gave two different
excuses for doing so. Mr. Bedilion failed to follow up with the neurological consultation
arranged for him because he alleges the neurologist’s office did not accept workers’
compensation. However, the Office of Judges found that the neurologist was at Ruby Memorial
Hospital, where Mr. Bedilion had already been treated for his workers’ compensation claim. Dr.
Christopher Martin was unable to find any indication in the medical records as to why the
follow-up was cancelled. The Office of Judges determined that it was not certain that Mr.
Bedilion lost consciousness at the time of his compensable injury because there were conflicting
accounts of the injury. Further, the Office of Judges found his assertion that he delayed seeking
treatment because he was the only person able to perform his job at that time to be questionable.
With regard to Mr. Bedilion’s degenerative changes, the Office of Judges determined that they
were in no way attributable to the compensable injury. Lastly, Mr. Bedilion did not report any of
the symptoms he alleged at Ruby Memorial Hospital on November 2, 2011, to any of his
subsequent doctors. The Office of Judges determined that the events that caused him to seek
treatment at Ruby Memorial Hospital that day could not be attributed to the work-related injury
that occurred nearly a month prior. Therefore, the claim was properly closed for temporary total
disability benefits.

        In a September 20, 2012, Order, the Office of Judges affirmed the claims administrator’s
April 5, 2012, decision denying authorization for cervical surgery because the condition for
which the surgery was requested was degenerative in nature. The Office of Judges found that
previous Office of Judges’ decisions already determined that the only compensable condition in
the claim was cervical sprain. The addition of other conditions to the claim was denied. The
Office of Judges stated that Dr. Christopher Martin opined that it was highly unlikely that Mr.
Bedilion could have continued to work for another month if his work-related injury aggravated
his pre-existing severe degenerative spine condition. Further, it was determined that the
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degenerative changes were clearly not attributable to his work-related injury. The degenerative
changes were determined by radiologists to be severe in nature, causing encroachment on the
spinal cord and nerves. Dr. Oh also found that the degenerative changes were so severe that they
were already causing encroachment. Dr. Ferraro concurred. The Office of Judges held that the
need for spinal surgery was due entirely to Mr. Bedilion’s non-compensable, pre-existing
degenerative condition.

        In an October 19, 2012, Order, the Office of Judges affirmed the claims administrator’s
April 11, 2012, decision denying Mr. Bedilion’s request for a reopening of his claim for
temporary total disability benefits. The Office of Judges found that Mr. Bedilion was denied
temporary total disability benefits for the compensable injury in a July 31, 2012, Office of
Judges’ Order. In the instant case, he failed to introduce any new evidence to show a progression
or aggravation of his compensable cervical sprain. The Office of Judges therefore found that res
judicata applied and denied Mr. Bedilion’s request for a reopening of his claim for temporary
total disability benefits.

        In a March 5, 2013, Order, the Office of Judges affirmed the claims administrator’s
March 29, 2012, decision holding the claim compensable for neck sprain and excluding the
diagnosis of cervicalgia. In its Order, the Office of Judges also affirmed the claims
administrator’s March 29, 2012, decision again holding the claim compensable for neck sprain
and excluding the diagnoses of cervical disc displacement, displacement of lumbar intervertebral
disc without myelopathy, unspecified chest pain, and other musculoskeletal symptoms referable
to the limbs. The Office of Judges determined that cervicalgia is simply a pain code and neck
pain would be included in the compensable diagnosis of neck sprain. Further, it has been
repeatedly found that cervical disc displacement as well as other cervical conditions, excluding
cervical sprain, were pre-existing and therefore not compensable. The Office of Judges noted
that Mr. Bedilion suffered a neck injury in 2008 for which he underwent a CT scan that revealed
severe degenerative changes. The Office of Judges determined that his degenerative changes are
not attributable to his compensable injury. They were described by radiologists as severe in
nature, causing encroachment on the spinal cord and nerves. Drs. Oh and Ferraro concurred.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Orders in its August 2, 2013, decision. This Court agrees with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary
record indicates that the only condition Mr. Bedilion sustained as a result of his compensable
October 6, 2011, injury was a cervical sprain. He missed no work as a result of the injury and is
therefore not entitled to temporary total disability benefits. Because the requested cervical
surgery is for the treatment of pre-existing degenerative conditions, it cannot be authorized.

        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.


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                                   Affirmed.

ISSUED: November 10, 2014

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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