                               STATE OF WEST VIRGINIA

                                                                                     FILED
                            SUPREME COURT OF APPEALS                            September 12, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
  JOHN K. BAIRD,                                                                OF WEST VIRGINIA

  Claimant Below, Petitioner

  vs.)   No. 11-1632	 (BOR Appeal No. 2045863)
                     (Claim No. 2008032449)

  ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC,
  Employer Below, Respondent


                               MEMORANDUM DECISION
        Petitioner John K. Baird, by John Robert Weaver, his attorney, appeals the decision of the
  West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products – Ravenswood,
  LLC, by H. Toney Stroud, its attorney, filed a timely response.

          This appeal arises from the Board of Review’s Final Order dated November 8, 2011, in
  which the Board affirmed a March 30, 2011, Order of the Workers’ Compensation Office of
  Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 17, 2009,
  decision, which denied the application to reopen Mr. Baird’s claim on a temporary total
  disability basis. 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.

         On December 11, 2007, Mr. Baird was employed by Alcan Rolled Products at the
  Ravenswood, West Virginia facility, when he fell into a hole in the floor and injured his low
  back and buttocks. The claims administrator held the injury compensable for a lumbosacral strain
  and buttocks contusion. Mr. Baird was released to return to work without restrictions on
  February 9, 2009. But on March 19, 2009, Mr. Baird filed an application to reopen his claim on a
  temporary total disability basis which was signed by Dr. Bechtold. Dr. Bechtold diagnosed Mr.
  Baird with various conditions which were not compensable components of Mr. Baird’s
  December 11, 2007, injury, including degenerative disc disease. The application requested



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temporary total disability benefits for the period from August 1, 2008, through January 3, 2009,
and from January 14, 2009, through June 30, 2009. The application further alleged that Mr.
Baird’s condition had progressed because he was not able to sit or drive for an extended period
without pain. The claims administrator denied the request on April 17, 2009, stating that the
medical information indicated that the request was related to a pre-existing and non-work-related
condition. The Office of Judges and Board of Review affirmed the claims administrator’s
decision, leading to this appeal.

        The Office of Judges first concluded that Mr. Baird’s current symptoms derived from his
pre-existing degenerative disc disease and not from the compensable injury of December 11,
2007. The Office of Judges considered the opinion of Dr. Bechtold, but it found that Dr.
Bechtold’s opinion did not address Mr. Baird’s non-compensable degenerative changes. The
Office of Judges found frequent complaints of low back pain throughout Mr. Baird’s medical
records as far back as December of 1999. The Office of Judges determined that Mr. Baird’s
current conditions were consistent with his history of degenerative back problems and more
likely the result of this pre-existing condition than the result of his compensable injury. The
Office of Judges secondly concluded that the evidence did not establish an aggravation or
progression of Mr. Baird’s compensable condition. The Office of Judges recognized that Mr.
Baird had surgery related to the progression of his disc herniation, but the Office of Judges found
that this condition was related to his non-work-related degenerative disc disease. The Board of
Review adopted the finding of the Office of Judges and affirmed its Order.

        We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Baird has a history of chronic back pain resulting from degenerative disc disease.
The Office of Judges relied on credible evidence in relating Mr. Baird’s period of alleged
temporary total disability to this non-compensable degenerative condition. Mr. Baird has not
presented any evidence disclosing a progression or aggravation of his compensable condition and
the claims administrator was correct to deny his application to reopen the claim on a temporary
total disability basis.

        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 12, 2013


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



DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
