                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 April 19, 2013

                                                                            RORY L. PERRY II, CLERK

WILLARD J. TYGRETT,                                                       SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1025	 (BOR Appeal No. 2045449)
                    (Claim No. 2009079132)

PROCESS CONSTRUCTION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Willard J. Tygrett, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Process Construction, Inc., by
Matthew Williams, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 7, 2011, in which
the Board affirmed a December 21, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s July 26, 2010, decisions
denying requests for epidural injections, Percocet, and a neurosurgical consultation. 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. Tygrett was employed with Process Construction, Inc. when he was injured while at
work on January 8, 2009. The claim was held compensable for a lumbar sprain/strain. On June
23, 2009, Dr. Guberman found that Mr. Tygrett had reached maximum medical improvement,
and that no further treatment or testing is likely to improve his condition. The claims
administrator on July 26, 2010, denied requests for epidural injections, authorization for
Percocet, and a neurosurgery consultation.

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        The Office of Judges affirmed the claims administrator’s decisions, and held that the
requested medical benefits were not medically related and reasonably required medical treatment
for the compensable injury. Mr. Tygrett disagrees and asserts that the opinion of Dr. Zahir, as the
treating physician, is the most relevant, credible, material, and reliable medical evidence of
record and because he requests the epidural injections, Percocet, and a neurosurgeon
consultation, the benefits should be authorized. Process Construction maintains that the
requested benefits are for a condition unrelated to the compensable lumbar sprain.

        The Office of Judges held that the requests for epidural injections, authorization for
Percocet, and a neurosurgery consultation were not related to the compensable injury in this
claim. It noted that the preponderance of the evidence established that Mr. Tygrett had been at
maximum medical improvement since June 23, 2009, and Dr. Guberman had at that time found
that no further treatment would be likely to improve his condition. The Office of Judges noted
signs of symptom magnification present in the evidence, and found that the requested medical
benefits were attributable to symptom magnification and non-compensable conditions. Thus, it
concluded that the requests were properly denied. The Board of Review reached the same
reasoned conclusions in its decision of June 7, 2011. 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 19, 2013

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

DISSENTING:
Justice Menis E. Ketchum

Chief Justice Benjamin concurs with the majority except that he would reverse and remand on
the specific issue of a neurosurgeon consultation.




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