                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10. 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROBERT STRATTON,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0878 (BOR Appeal No. 2048147)
                   (Claim No. 2005019073)

SPARTAN MINING COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Robert Stratton, by Stephen P. New, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Spartan Mining Company, by Sean
Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 5, 2013, in
which the Board affirmed a February 15, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 18,
2012, decision which denied a request to reopen the claim for additional permanent partial
disability. 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. Stratton, a coal truck driver, was injured in the course of his employment on October
25, 2004, when the truck he was driving struck a pothole. The claim was held compensable for
displacement of lumbar intervertebral disc without myelopathy and lumbosacral sprain. The
claims administrator specifically denied the addition of lumbar radiculopathy/neuropathy to the
claim. A treatment note by Joby Joseph, M.D., dated October 9, 2007, indicates Mr. Stratton
underwent an EMG and NCV, which showed evidence of polyneuropathy but showed no
evidence of lower extremity radiculopathy. Dr. Joseph stated that he seriously doubted Mr.
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Stratton’s symptoms were the result of a back injury, but the possibility could not be completely
excluded at that time. He stated that critical care neuropathy needed to be considered because
Mr. Stratton had a prolonged hospital stay due to a heart attack.

        An independent medical evaluation was performed by Joseph Grady II, M.D., on October
23, 2008. Dr. Grady diagnosed chronic lumbosacral myofascial strain with reported disc
herniation on the right at L5-S1 and found Mr. Stratton was at maximum medical improvement.
He assessed 12% impairment and placed Mr. Stratton in Lumbar Category II of West Virginia
Code of State Rules § 85-20-C (2006). The impairment was adjusted to 8%. A second
independent medical evaluation was performed by Robert Walker, M.D., on July 10, 2012. Dr.
Walker assessed 18% whole person impairment. He placed Mr. Stratton in Lumbar Category III
because he found right sided radiculopathy at L5-S1 in a dermatome pattern with calf atrophy
and diminished ankle reflexes on the right. He adjusted his impairment rating to 13%.

        The claims administrator denied a request to reopen the claim for additional permanent
partial disability on September 18, 2012. The Office of Judges affirmed the decision in its
February 15, 2013, Order. The Office of Judges previously considered the amount of permanent
partial disability to be awarded in this claim on July 20, 2010. In that Order, the Office of Judges
determined that the difference between Dr. Grady’s independent medical evaluation and the
independent medical evaluation of Julian Chipley, D.C., was the placement of Mr. Stratton in
Lumbar Category II or III. The Office of Judges in that case determined that Mr. Stratton
belonged in Lumbar Category II. In order to be placed in Lumbar Category III, a claimant must
have significant signs of radiculopathy. The Office of Judges in the instant case determined that
the claims administrator previously denied a request to add lumbar radiculopathy/neuropathy as a
compensable component of the claim. Further, Dr. Joseph, a neurosurgeon, stated that he did not
believe Mr. Stratton’s symptoms were the result of a back injury. Dr. Walker opined that there
were significant signs of radiculopathy; however, the Office of Judges reiterated that the claims
administrator specifically denied the addition of lumbar radiculopathy to the claim. Also, Dr.
Joseph conducted an EMG and NCV and found no evidence of lower extremity radiculopathy.
Lastly, the Office of Judges noted that pursuant to West Virginia Code of State Rules § 85-20­
66.2 (2006), a back examination form must be submitted with a narrative report and any report
submitted without the form shall be disregarded. Dr. Walker failed to submit a back examination
form with his independent medical evaluation.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its August 5, 2013, decision. On appeal, Mr. Stratton argues that
Dr. Walker’s report is just as reliable as the others of record despite his failure to submit a back
examination form. Spartan Mining Company asserts that Dr. Walker’s report is unreliable
because he failed to follow the guidelines set forth in West Virginia Code of State Rules § 85-20­
66.2. After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. Mr. Stratton has failed to meet his burden of proof under
West Virginia Code § 23-5-3 (2009) to establish that he sustained an aggravation or progression
of his compensable injury that would entitle him to a reopening of his claim for consideration of
an additional permanent partial disability award.

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        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: November 10, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman

Justice Brent D. Benjamin, disqualified




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