                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 17, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROBERT BANDY,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1076 (BOR Appeal No. 2049411)
                   (Claim No. 2012029853)


CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Robert Bandy, by Jonathan C. Bowman, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
Edward M. George III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 23, 2014, in
which the Board affirmed an April 18, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 16, 2013,
decision holding the claim compensable for lumbar sprain but denying the request to add
thoracic or lumbosacral neuritis/radiculitis as a compensable condition. 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. Bandy worked as a beltman for Consolidation Coal Company. On March 15, 2012,
Mr. Bandy experienced very sharp pain in his low back when lifting a sand prop weighing 100 to
150 pounds. The claim was held compensable for lumbar sprain. C. Clark Milton, D.O., treated
Mr. Bandy from March 19, 2012, until September 10, 2012, and found that Mr. Bandy had back
pain and radiculopathy symptoms. Dr. Milton concluded that it was difficult to determine what
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conditions were related to the injury and what conditions were pre-existing chronic conditions.
Mr. Bandy was involved in a motor vehicle accident in 1996, which resulted in an injury to his
back, and he underwent back surgeries as a result of the accident, one in 1996 and one in 2001.
In an independent medical evaluation, Bruce Guberman, M.D., diagnosed Mr. Bandy with
chronic lumbosacral strain. Bradley Schmitt, M.D., treated Mr. Bandy from April 4, 2013, until
June 24, 2013, and he completed a diagnosis update request on June 24, 2013. Dr. Schmitt
requested that the diagnosis of chronic lumbar radiculopathy be added as a secondary condition.
On July 16, 2013, the claims administrator held the claim compensable for lumbar sprain but
denied the request to add thoracic or lumbosacral neuritis/radiculitis as a compensable condition.

        The Office of Judges affirmed the claims administrator’s decision and found that Mr.
Bandy has failed to establish by a preponderance of the evidence that the condition of thoracic or
lumbosacral neuritis/radiculitis, unspecified, occurred in the course of and as a result of his
employment. The Board of Review affirmed the Order of the Office of Judges. On appeal, Mr.
Bandy disagrees and asserts that his testimony and medical evidence of causation is sufficient to
meet his burden of proof and in addition there is no contrary medical evidence to support another
basis for the neuritis/radiculitis other than the compensable injury. Consolidation Coal Company
maintains that Mr. Bandy failed to establish that the condition of thoracic or lumbosacral
neuritis/radiculitis was causally related to the compensable injury. Consolidation Coal Company
further maintains that Mr. Bandy had pre-existing lumbar conditions.

        The Office of Judges concluded that this case is not simply a case of minor degenerative
changes of the lumbar spine being asymptomatic prior to the compensable injury. Mr. Bandy has
had two prior back surgeries, and as stated in the June 7, 2012, report of Vincent Miele, M.D.,
Mr. Bandy has significant degenerative disc disease in the lumbar spine, which was also revealed
in the March 30, 2012, MRI. In a September 10, 2012, report, Dr. Milton found that it is difficult
to determine what is secondary to Mr. Bandy’s recent injury and what conditions are his chronic
issues. Dr. Milton reported the left radicular symptoms four days after the injury but did not
report Mr. Bandy’s right radicular symptoms until at the earliest two months after the injury. Dr.
Milton rendered no opinion as to the compensability of neuritis/radiculitis. The Office of Judges
found that the question of whether neuritis/radiculitis is a compensable condition is complicated
by Mr. Bandy’s medical history. Dr. Guberman saw Mr. Bandy on December 20, 2012, and
made no diagnosis of neuritis/radiculitis. The Office of Judges found that the only physician of
record that made an opinion on the compensability of neuritis/radiculitis is Dr. Schmitt in his
diagnosis update request. The Office of Judges noted that Dr. Schmitt saw Mr. Bandy as early as
April of 2012 and on several occasions afterwards but made no assessment of left radiculopathy
until December 11, 2012, nine months after the injury. Dr. Schmitt failed to explain how the
requested radiculopathy is related to this injury but merely stated that this request is for a new
injury. The Office of Judges determined that the evidence of record does not prove by a
preponderance of the evidence that the neuritis/radiculitis is causally related to the compensable
injury.

       The Board of Review agreed with the Order of the Office of Judges. This Court agrees
with the Board of Review. Dr. Guberman made no diagnosis of neuritis/radiculitis, and Dr.
Milton gave no opinion on whether Mr. Bandy’s radiculopathy was related to the work injury.
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Mr. Bandy has significant degenerative disc disease in the lumbar spine prior to this work injury
as revealed on the March 20, 2012, MRI. Dr. Schmitt was the only physician who found
radiculopathy should be added as a compensable condition but failed to provide any explanation
as to how this condition was related to the work injury and not pre-existing. Mr. Bandy has failed
to prove by a preponderance of the evidence that the condition of thoracic or lumbosacral
neuritis/radiculitis, unspecified occurred in the course of and as a result of his employment.

        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 17, 2015

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




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