                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 29, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
STEVEN T. LUSK,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0528 (BOR Appeal No. 2047944)
                   (Claim No. 2000051696)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

THE GILBERT COMPANIES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Steven T. Lusk, by John C. Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Mark A. Bramble, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 26, 2013, in
which the Board affirmed a December 5, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 4, 2012,
decision which denied a request for further treatment because the claim is time-barred. 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. Lusk, a foreman, injured his lower back while cutting timber on a hillside when he
slid and fell backwards into a ravine on March 7, 2000. His claim was held compensable for
displacement of lumbar intervertebral disc and lumbar sprain. He underwent lumbar spine
surgery and has had chronic lower back pain since. A lumbar MRI taken in September of 2007
revealed extensive multilevel degenerative disc disease with desiccation and narrowing of all
discs, stenosis, and osteoarthritis.

        Mr. Lusk requested a reopening of his claim for medical treatment and the request was
denied by the claims administrator on May 4, 2012, because the claim was time-barred. The
Office of Judges affirmed the claims administrator’s decision in its December 5, 2012, Order. It
found that Mr. Lusk has attempted to reopen his claim numerous times but those petitions have
been denied. The record does not demonstrate that there have been any benefits authorized after
July 13, 2004. Additionally, the Office of Judges noted that Mr. Lusk has extensive degenerative
changes and underwent an additional surgery in 2009. It was determined that the current request
for treatment was dated April 25, 2012, and though it is possible there is still litigation in process
concerning a request for benefits within the five year limitation, the instant request is time-barred
by West Virginia Code § 23-4-16(a)(4) (2005). The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order in its April 26, 2013,
decision.

       This Court agrees with the reasoning and conclusions of the Board of Review. West
Virginia Code § 23-4-16(a)(4) provides that in any case in which treatment has not been
rendered for a period of five years, no request for additional treatment shall be granted. There is
no indication in the record that Mr. Lusk has received authorized treatment since 2004. His 2012
request to reopen for medical benefits therefore falls outside of the five year time frame.

        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: September 29, 2014

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




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