                             STATE OF WEST VIRGINIA                                FILED
                                                                                 July 15, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                          SUPREME COURT OF APPEALS                            OF WEST VIRGINIA


PHILLIP R. BALL,
Claimant Below, Petitioner

vs.)   No. 11-1126	 (BOR Appeal No. 2045548)
                   (Claim No. 2002032810)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PANTHER BRANCH COAL CO.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Phillip R. Ball, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by
David L. Stuart, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 18, 2011, in which
the Board affirmed a January 19, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s April 12, 2010, denial of
Mr. Ball’s request for authorization for an MRI of his lumbar spine. 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. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
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        Mr. Ball was injured on August 31, 2001, in the course of his employment with Panther
Branch Coal Co., while lifting a rail up onto a jack. Mr. Ball was diagnosed with an acute
lumbosacral strain and the claim was found compensable for displaced intervertebral disc by the
claims administrator on January 25, 2002. Mr. Ball was also granted a permanent partial
disability award of 8% on October 21, 2004.

        Over the next decade, Mr. Ball received various treatments, including lumbar spine
surgery on March 2, 2009. Mr. Ball has also received several MRIs, all of which indicated
degenerative changes. Following his surgery in March of 2009, Mr. Ball had nearly a year of
reduced back pain. But by the end of March of 2010, Mr. Ball went to Dr. Weinsweig,
complaining of increasing back pain. On March 23, 2010, Dr. Weinsweig requested
authorization from the claims administrator for an MRI to diagnose the cause of Mr. Ball’s
symptoms in anticipation of future surgery. The claims administrator referred the case to Dr.
Stemple for an evaluation of Mr. Ball’s need for an MRI. Dr. Stemple recommended against
authorizing an MRI of Mr. Ball’s lumbar spine. Considering that Mr. Ball’s prior MRIs revealed
signs of degenerative disc disease, Dr. Stemple believed an MRI would be an excessively
sensitive diagnostic tool. Dr. Stemple opined that unless the MRI was requested to diagnose
progressive and severe neurologic deficits or to rule out serious pathologies such as a tumor, it
was an unnecessary diagnostic tool in this case. Based on Dr. Stemple’s recommendation, the
claims administrator denied Dr. Weinsweig’s request on April 12, 2010. The denial was affirmed
by the Office of Judges on January 19, 2011, and by the Board of Review on July 18, 2011,
leading to this appeal.

        The Office of Judges concluded that there was no objective basis for authorizing a lumbar
MRI and affirmed the claims administrator’s decision. The Office of Judges relied on the opinion
of Dr. Stemple and found that although Mr. Ball was having pain, he had not submitted enough
evidence to support his request for an additional MRI. The Board of Review adopted the findings
of the Office of Judges and affirmed its Order on July 18, 2011.

        The conclusions of the Board of Review and the Office of Judges are based on a material
mischaracterization of the evidence in the record. Mr. Ball has submitted enough evidence to
justify his request for an additional lumbar MRI. Although the treatment notes of Dr. Weinsweig,
indicating that Mr. Ball needs an additional MRI, are based primarily on Mr. Ball’s subjective
complaints, there is sufficient evidence, considering the record as a whole, that the request is
reasonably related to Mr. Ball’s compensable injury.

       For the foregoing reasons, we find that the decision of the Board of Review is clearly
based on a material misstatement or mischaracterization of particular components of the
evidentiary record. Therefore, the decision of the Board of Review is reversed, and the case is
remanded with instructions to authorize an MRI of Mr. Ball’s lumbar spine according to Dr.
Weinsweig’s March 23, 2010, request.


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                                      Reversed and Remanded.

ISSUED: July 15, 2013

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




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