                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 6, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DANNY L. WATSON,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1287 (BOR Appeal No. 2048509)
                   (Claim No. 2012032767)


THE HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Danny L. Watson, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The Homer Laughlin China
Company, by Lucinda Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 22, 2013, in
which the Board affirmed a May 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 2, 2012,
decision to reject Mr. Watson’s claim for workers’ compensation benefits. 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. Watson, an employee of The Homer Laughlin China Company, alleged he was
injured on April 16, 2012, when he was lifting sponge pads and a table. Mr. Watson reported to
Jon Levy, M.D., for an evaluation of his injuries. Dr. Levy noted that Mr. Watson had undergone
cervical fusions at C5-6 and C6-7 and lumbar fusions from the L3 level to the sacrum. Mr.
Watson had a history of chronic pain and had been under the care of Mark Foster, D.O., for an
extended period of time. Mr. Watson had been receiving OxyContin, Norco, Xanax, Zanaflex
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and Trazodone for nearly a decade. However, Dr. Foster suddenly quit working in March of
2012, which left Mr. Watson without narcotics or pain management. Mr. Watson stated to Dr.
Levy that his pain was now incapacitating. An x-ray of the cervical spine revealed plate fixation
at C5-6 with apparent fusion at C6-7 as well. An x-ray of the lumbar spine showed advanced
degenerative changes with pedicle screw instrumentation from L3 to S1. An x-ray of both knees
revealed mild degenerative changes with normal alignment and joint space. Dr. Levy diagnosed
Mr. Watson with chronic pain syndrome. Dr. Levy noted that it was difficult for him to
distinguish between the pain related to the new injury and the fact that he was no longer taking
narcotics for his chronic pain. However, based upon Mr. Watson’s statements that all of his prior
surgeries had been covered under workers' compensation, Dr. Levy concluded that Mr. Watson's
symptoms were work related. Dr. Levy diagnosed cervical spondylosis, lumbar spondylosis, and
post laminectomy syndrome of the lumbar spine. The claims administrator denied Mr. Watson’s
application asserting he had failed to show how his diagnosis was related to his April 16, 2012,
injury. Mr. Watson protested. Mr. Watson had an independent medical examination performed
by Victoria Langa, M.D. Dr. Langa opined that the pain suffered by Mr. Watson was not a result
of any injury but was a result of his cessation of OxyContin.

        The Office of Judges affirmed the claims administrator’s decision to reject the claim. The
Office of Judges noted that Mr. Watson has had long term chronic back problems that has
required several surgeries. The Office of Judges also noted that Mr. Watson had been seeing Dr.
Foster who had prescribed him OxyContin for the past decade. The Office of Judges noted that
Dr. Foster retired in March of 2012, Mr. Watson allegedly injured himself of April 16, 2012, and
Mr. Watson was seen with obvious symptoms of narcotic withdrawal on April 20, 2012. The
Office of Judges noted that Dr. Levy opined that it would be difficult to determine whether Mr.
Watson’s complaints were caused by the injury that allegedly occurred on April 16, 2011, or by
his cessation of OxyContin. The Office of Judges concluded that Dr. Levy’s report does not
causally connect Mr. Watson’s symptoms to a specific injury. He simply opined that, since all of
Mr. Watson’s other injuries were compensable, then this one should be as well. The Office of
Judges then turned to the independent medical examination conducted by Dr. Langa. Dr. Langa
opined that the pain suffered by Mr. Watson was not a result of any injury but was a result of his
cessation of OxyContin. Next the Office of Judges noted that the symptoms complained of
before and after the injury were the same, indicating that no new injury had occurred. Finally the
Office of Judges noted that Mr. Watson’s own testimony shows that he was in severe pain before
the alleged April 16, 2012, injury. As a result, the Office of Judges determined that Mr. Watson
failed to establish he was injured in the course of and as a result of his employment. The Board
of Review adopted the findings of the Office of Judges and affirmed its conclusions.

        The findings of the Office of Judges and conclusions of the Board of Review should be
affirmed. The only inference that would lead to the conclusion that Mr. Watson suffered a
compensable injury is the report of Dr. Levy. In Dr. Levy’s report, he opines that it is difficult to
tell whether Mr. Watson’s complaints of pain were a result of any injury or caused by his
cessation of narcotic medications. Dr. Langa opined that the new symptomatology was caused by
his cessation of pain medication and not any new injury. The evidence of record supports Dr.
Langa’s interpretation. The evidence in the record indicates that Mr. Watson was no longer able

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to procure a prescription to OxyContin in early April and he started suffering withdrawal
symptoms followed by excruciating pain, which tends to show that no injury occurred.

        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: April 6, 2015

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

DISSENTING:
Chief Justice Margaret L. Workman




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