                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 13, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LUTHER L. SANGER,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0373	 (BOR Appeal No. 2046350)
                   (Claim No. 840040414)

CONSOLIDATION COAL, MID-CONT BLUEFIELD,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Luther L. Sanger, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Consolidation Coal Mid-Cont
Bluefield, by Gary W. Nickerson, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 22, 2012, in
which the Board affirmed an August 31, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 8, 2010,
decision which denied Mr. Sanger’s request for a consultation with Dr. Jane for an evaluation
and possible surgery. 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. Sanger worked as a supply man for Consolidation Coal. On February 27, 1984, Mr.
Sanger sustained a low back injury while unloading timbers at a coal mine. The claim was held
compensable for a low back strain. On November 19, 1991, Mr. Sanger underwent an L3 and L4
hemilaminectomy and an L4-5 left foraminotomy as well as decompression of spinal stenosis.
But on August 30, 2010, Dr. Kabbara requested authorization for a consultation with Dr. Jane.
Dr. Kabbara’s treatment notes from that period indicate that Mr. Sanger was experiencing pain in
his low back radiating down his legs. X-rays taken at that time showed multilevel degenerative
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spondylosis within Mr. Sanger’s lumbar spine. Dr. Kabbara’s request was reviewed by Dr. Fadel,
who found that the requested consultation was in anticipation of a decompression spinal stenosis
surgery at L4-5. But Dr. Fadel was not able to connect Mr. Sanger’s current need for surgical
intervention with his compensable injury. Dr. Fadel found that Mr. Sanger had multilevel
degenerative spondylosis which pre-existed his compensable injury. Dr. Fadel also found that
Mr. Sanger’s current symptoms could be attributed to normal aging. On October 8, 2010, the
claims administrator denied the requested consultation with Dr. Jane. On August 31, 2011, the
Office of Judges affirmed the claims administrator’s decision. The Board of Review then
affirmed the Order of the Office of Judges on February 22, 2012, leading Mr. Sanger to appeal.

        The Office of Judges concluded that a preponderance of the evidence did not support
authorization for the requested surgery. The Office of Judges found that Mr. Sanger’s need for
the surgery was supported by the medical evidence in the record but that Mr. Sanger’s need for
the procedure was not related to his compensable injury. The Office of Judges found that Mr.
Sanger’s current symptoms were caused by multilevel degenerative disc disease and there was
no evidence to connect this condition to his compensable injury. The Board of Review adopted
the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Sanger has not demonstrated that the requested consultation with Dr. Jane, in
anticipation of surgical decompression of his spinal stenosis, is reasonably related or medically
necessary to treat his compensable low back strain. Although the record shows that Mr. Sanger is
experiencing continuing pain, there is no evidence that causally links his continuing symptoms
with his compensable injury. The evidence in the record shows that the claimant’s symptoms and
the requested treatment are related to non-compensable multilevel degenerative disc disease.

        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: December 13, 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

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