                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 7, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GARY CRABTREE,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0083	 (BOR Appeal No. 2045966 & 2046398)
                   (Claim No. 2010100395)

THE HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Gary Crabtree, by Christopher J. Wallace, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The Homer Laughlin China
Company, by Lucinda L. Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 10, 2012, in
which the Board affirmed May 18, 2011, and September 16, 2011, Orders of the Workers’
Compensation Office of Judges. In its May 18, 2011, Order, the Office of Judges affirmed the
claims administrator’s January 28, 2011, decision, which denied authorization for cervical
surgery. In its September 16, 2011, Order, the Office of Judges affirmed the claims
administrator’s April 4, 2011, decision which closed the claim for temporary total disability
benefits. 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. Crabtree worked as a kiln supervisor for the Homer Laughlin China Company. Mr.
Crabtree has a significant history of cervical problems necessitating an anterior discectomy and
fusion at C4-5 and C5-6 in September of 2008. On July 16, 2009, Mr. Crabtree was feeling
unwell due to heat exhaustion and fell down a flight of stairs. He was taken to the emergency
room and treated for a closed head injury. Imaging studies taken at the time of his injury showed
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that the hardware from his prior cervical fusion was intact and the bone tissue was undamaged.
On August 15, 2009, Mr. Crabtree underwent an MRI of his cervical spine which showed no
significant interval change from a post-operative MRI taken in December of 2008. But Mr.
Crabtree began developing significant pain in the neck and left arm, and on December 29, 2010,
he underwent another MRI which evidenced a significant herniation at the C6-7 disc and
impingement of the C7 nerve root. Following this MRI, Dr. MacPherson, Mr. Crabtree’s treating
physician, requested authorization for cervical surgery. Mr. Crabtree’s case was then referred to
Dr. Langa. Based on a review of the records of the case, Dr. Langa recommended against
authorizing the cervical surgery. Dr. Langa believed that the surgery was appropriate to treat Mr.
Crabtree’s herniated disc, but that the condition was not caused by the compensable injury. Dr.
Langa pointed out that the imaging study and MRI taken soon after the compensable injury
showed no evidence of damage to Mr. Crabtree’s cervical spine. Based on Dr. Langa’s report,
the claims administrator denied Dr. MacPherson’s request for cervical surgery on January 28,
2011. The claims administrator then closed Mr. Crabtree’s claim for temporary total disability
benefits on April 4, 2011. The Office of Judges affirmed the claims administrator’s January 28,
2011, decision on May 18, 2011. The Office of Judges also affirmed the claims administrator’s
April 4, 2011, decision on September 16, 2011. The Board of Review affirmed the May 18,
2011, and September 16, 2011, Orders of the Office of Judges. Mr. Crabtree has appealed the
Order of the Board of Review with respect to the request for cervical surgery but has not
appealed the closure of his claim for temporary total disability benefits.

        In its May 18, 2011, Order, the Office of Judges concluded that Mr. Crabtree’s current
need for surgery at the C6-7 level of the cervical spine is not related to his compensable injury.
The Office of Judges determined that the surgery was reasonable and necessary to treat Mr.
Crabtree’s herniated disc but that the herniation at the C6-7 disc was not related to his
compensable injury. The Office of Judges pointed out that the disc herniation was not seen on
the August 15, 2009, MRI. The Office of Judges also pointed out that Mr. Crabtree had
significant cervical problems prior to the compensable injury which had required a fusion
surgery even though there was no precipitating injury. The Board of Review adopted the findings
of the Office of Judges and affirmed its Order on January 10, 2012.

       We agree with the conclusion of the Board of Review and the findings of the Office of
Judges with regard to Mr. Crabtree’s request for cervical surgery. Mr. Crabtree has not
demonstrated that the surgery reasonably related and is medically necessary to treat a
compensable condition of the claim. The evidence in the record does not demonstrate a causal
link between Mr. Crabtree’s herniation at the C6-7 disc and his compensable injury. Mr.
Crabtree has had significant cervical problems predating the compensable injury and the record
demonstrates that his current condition necessitating the surgery relates to his pre-existing
condition.

        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 7, 2013

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




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