                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 12, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TERRY MERCER,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0622 (BOR Appeal No. 2047840)
                   (Claim No. 2011020268)


SABIC INNOVATIVE PLASTICS US, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Terry Mercer, by George Zivkovich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Sabic Innovative Plastics US, LLC, by
Sean Harter, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated May 21, 2013, in which
the Board affirmed an October 24, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 17, 2011, decision
denying the addition of thoracic radiculopathy as a compensable condition of the claim. 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. Mercer, an employee of Sabic Innovative Plastics US, LLC, injured himself while
working underneath a machine on December 9, 2010. Mr. Mercer was originally seen by Robert
Gerbo, M.D., who prescribed medications and referred Mr. Mercer to Camden Clark Hospital.
Dr. Gerbo only noted lower back pain. He did not note any thoracic area pain or symptoms. At
Camden Clark Hospital, Mr. Mercer was examined by Edward Pasternak, D.O., who took a CT
scan of Mr. Mercer’s spine. Dr. Pasternak did not note any symptoms related to the thoracic area
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of Mr. Mercer’s spine. Mr. Mercer was diagnosed with a low back strain. Thereafter, Mr. Mercer
was referred to Mountaineer Pain Relief and Rehabilitation Center where he was examined by
Michael Shramowiat, M.D., and Donna Davis, M.D. Dr. Shramowiat diagnosed a low back
strain and pain in the limb. Dr. Shramowiat did not note any problems or symptoms with the
thoracic region of Mr. Mercer’s spine. Thereafter, Dr. Davis noted the pain radiating down both
lower extremities and requested that thoracic radiculopathy be added as a compensable condition
of Mr. Mercer’s December 9, 2010, injury. Dr. Davis found no objective evidence that would
lead to the conclusion Mr. Mercer was experiencing thoracic radiculopathy such as an MRI or
nerve conduction study. Dr. Davis found that the diagnosis of thoracic radiculopathy was
supported by Mr. Mercer’s subjective assertion of pain. At a follow-up appointment with Dr.
Davis, Mr. Mercer did not complain of any symptoms consistent with radiculopathy. Mr. Mercer
was also examined by Bill Hennessey, M.D., and Joseph Grady, M.D. Neither Dr. Grady nor Dr.
Hennessey noted any symptoms of thoracic radiculopathy and they both agreed that the
diagnosis of a lumbar strain covered all compensable aspects of the injury. Drs. Shramowiat,
Grady, and Hennessey all agreed that thoracic radiculopathy should not be added as a
compensable condition of the claim. In forming their opinions, all physicians noted that there
was no objective evidence of thoracic radiculopathy. The claims administrator denied the request
to add thoracic radiculopathy as a compensable condition of the claim. Mr. Mercer protested.

        The Office of Judges found that Mr. Mercer did not suffer from thoracic radiculopathy
incurred in the course of and resulting from his employment with Sabic Innovative Plastics US,
LLC. The Office of Judges noted that the only medical professional that diagnosed thoracic
radiculopathy was Dr. Davis. The Office of Judges noted that Dr. Davis did not rely on objective
evidence such as an MRI or nerve conduction study to diagnose thoracic radiculopathy. The only
evidence that could have led to a diagnosis was Mr. Mercer’s assertion of symptoms consistent
with radiculopathy. However, the Office of Judges noted that Mr. Mercer’s assertion of
symptoms consistent with radiculopathy were only noted on some visits to Dr. Davis and not on
others. Also Mr. Mercer did not complain of any symptoms consistent with radiculopathy to any
of the other reviewing physicians. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

        We agree with the findings of the Office of Judges and the conclusion of the Board of
Review. Mr. Mercer has not shown that he is entitled to have thoracic radiculopathy added as a
compensable condition of his claim. Dr. Davis is the only physician of record who opines that
Mr. Mercer suffers from thoracic radiculopathy. Dr. Davis diagnosed thoracic radiculopathy
without any objective evidence of nerve damage or impingement. Dr. Davis based her diagnosis
of radiculopathy solely on Mr. Mercer’s assertion that he was experiencing radiating pain. Mr.
Mercer’s account of radiating pain is not consistent in Dr. Davis’s reports or any other report.
Since the evidence establishes that Mr. Mercer does not suffer from symptoms consistent with
radiculopathy, it was not in error for the Office of Judges and Board of Review to not add
thoracic radiculopathy as a compensable 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

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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: March 12, 2015

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


DISSENTING:
Justice Menis E. Ketchum




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