                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                  May 14, 2013

                                                                             RORY L. PERRY II, CLERK

REX ALLEN VANCE,                                                           SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0925	 (BOR Appeal No. 2045323)
                   (Claim No. 2009089222)

KINGSTON MINING, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Rex Allen Vance, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Kingston Mining, Inc., by Marion
E. Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 20, 2011, in which
the Board affirmed a November 17, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 4, 2009,
rejection of authorization for left shoulder decompression, acromioplasty, rotator cuff repair, and
excision of the lateral end of the clavicle, and the claims administrator’s May 18, 2010, denial
the addition of left rotator cuff tear and impingement syndrome, while accepting the addition of a
sprain of unspecified site of shoulder and upper arm, as compensable conditions of Mr. Vance’s
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. Vance was employed by Kingston Mining, Inc. as a roof bolter. On April 23, 2009,
he sustained an injury to his left shoulder while lifting a glue box. Mr. Vance’s sprain of an
unspecific site of his shoulder and upper arm were held compensable by the claims administrator
on June 8, 2009. Mr. Vance’s request for compensability for left rotator cuff tear and
impingement syndrome, and his request for authorization for surgical intervention were rejected
by the claims administrator, stating that the injuries were the result of a pre-existing condition
unrelated to the compensable injury. The rejection led to this appeal.

        In this case, the Office of Judges found by a preponderance of the evidence that Mr.
Vance’s rotator cuff tear and impingement syndrome were not part of his compensable injury but
were pre-existing conditions. The Office of Judges was persuaded by the evaluation of Dr.
Bachwitt, who stated that the evaluations of Dr. Zahir conducted in 2002, prior to the
compensable injury, evidenced a complete left rotator cuff tear. Dr. Bachwitt attributed Mr.
Vance’s current condition and need for surgical intervention to that prior injury. Since the Office
of Judges was persuaded by Dr. Bachwitt’s report, it held that the requested treatments should
not be authorized.

      The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on May 20, 2011.

       We agree with the Office of Judges’ finding that Mr. Vance’s rotator cuff tear and
impingement syndrome were related to an injury that pre-existed his compensable April 23,
2009, injury. We agree that the treatments related to those pre-existing injuries should not have
been authorized. The Board of Review was not clearly wrong to affirm the Office of Judges’
Order.

        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: May 14, 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
