                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
THOMAS E. WILSON SR.,                                                         OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0208 (BOR Appeal No. 2047560)
                   (Claim No. 900050980)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

CGM CONTRACTORS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Thomas E. Wilson Sr., by Edwin H. Pancake, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 30, 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 April 11, 2012,
decision which denied a referral to a pain specialist. 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. Wilson, a heavy equipment operator, was injured in the course of his employment on
March 14, 1990, when he was climbing onto a crane and felt something snap in his back. The
injury resulted in a herniated disc and he underwent surgery. A December of 1999 letter from his
treating physician, Robert Holley, M.D., stated that Mr. Wilson had intractable back pain and a
recent MRI showed degenerative disc disease at L5-S1. He was determined to be a long-term
management case and incapable of returning to the work force. Dr. Holley stated that attempts to
wean Mr. Wilson from pain medications had failed in the past. He therefore recommended
continuation of the medications and monitoring for addiction.

        In June of 2007, Paul Bachwitt, M.D., performed an independent medical evaluation of
Mr. Wilson. Dr. Bachwitt stated that x-rays taken that day showed mild degenerative changes at
L4-5, narrowing at L4-5 and L5-S1, and minimal degenerative changes in the rest of the spine. A
lumbar spine examination was unremarkable and he diagnosed lumbar sprain/strain, herniated
L4-5 disc, and status post L4-5 laminectomy. Dr. Bachwitt opined that Mr. Wilson had long
since recovered from his compensable injury and subsequent surgery. He stated that continuation
of Hydrocodone and Neurontin, which are narcotics, was inadvisable over this long period of
time. He noted that Mr. Wilson was still taking Hydrocodone seventeen years after the injury. It
is a Schedule III narcotic and under West Virginia Code of State Rules § 85-20-53.14b (2006), it
should be prescribed no longer than six weeks following an injury or subsequent surgery.

        A lumbar spine MRI taken on October 13, 2011, showed degenerative disc disease with
disc desiccation, surgical changes at L4-5, epidural fibrosis, and facet arthrosis at L4-5 and L5­
S1. There was no evidence of re-herniation, disc bulging, disc protrusion, or disc extrusion. Dr.
Holley thereafter stated that Mr. Wilson continued to complain of a chronic dull ache in his
lumbar spine radiating into his feet as well as lumbar spasms. He requested authorization for
referral to a pain specialist. Mr. Wilson testified in a May of 2012 deposition that Dr. Holley had
been his treating physician for ten to twelve years. Mr. Wilson underwent physical therapy and
injections in the past with little success and he asserted that pain medication provided the most
relief for his symptoms. He also stated that he was treated at a pain management facility in the
past and the treatment helped him learn to control his pain and medications.

        The claims administrator denied Dr. Holley’s request for a referral to a pain specialist on
April 11, 2012. The Office of Judges affirmed the decision in its July 31, 2012, Order. It found
that a 1999 MRI showed degenerative disc disease. Mr. Wilson was evaluated by Dr. Bachwitt in
2007 and he found that the physical findings were contradictory and Mr. Wilson’s x-rays only
revealed some disc narrowing at L4-5. The Office of Judges determined that there was an
insufficient link between Mr. Wilson’s current symptoms and the compensable 1990 injury. Dr.
Holly’s March 9, 2012, office note, in which he determined a referral to a pain specialist was
necessary, failed to articulate a causal connection between Mr. Wilson’s current complaints and
the twenty-two year old injury. The Office of Judges found it relevant that the October of 2011
lumbar MRI showed no signs of significant disc bulging and no disc protrusion or extrusion
despite finding degenerative disc disease at several levels.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its January 30, 2013, decision. This Court agrees with the
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reasoning and conclusions of the Board of Review. The evidentiary record fails to demonstrate a
causal connection between the request for a referral to a pain specialist and the compensable
injury.

        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: June 27, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Brent D. Benjamin
Justice Margaret L. Workman




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