                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BILLY GENE SIZEMORE,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0606 (BOR Appeal No. 2049215)
                   (Claim No. 940008036)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

JET COAL SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Billy Gene Sizemore, pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. The West Virginia Office of the Insurance
Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 30, 2014, in which
the Board affirmed a February 11, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges modified the claims administrator’s June 12, 2012, decision
which denied a request for the medications Levaquin, Prednisone, Combivent, Neurontin, Qvar,
Spiriva, and Theophylline. The Office of Judges authorized Neurontin. 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.
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        Mr. Sizemore, a roof bolter, was injured in the course of his employment on August 17,
1993, when he was struck by a shuttle car and pinned. He suffered multiple crush injuries,
including a chest wall deformity that caused restrictive lung disease. He requested the
medications Levaquin, Prednisone, Combivent, Neurontin, Qvar, Spiriva, and Theophylline. The
claims administrator denied his request on June 12, 2012, finding that the medications were not
for the treatment of the compensable injury.

         Mr. Sizemore has been under the care of Vishnu Patel, M.D, for the compensable injury.
In 2008, he diagnosed occupational pneumoconiosis, pleural thickening, and restrictive lung
disorder. Dr. Patel prescribed Combivent, Proventil, Qvar, and Zyban. In December of 2011, Dr.
Patel stated that Mr. Sizemore had experienced an exacerbation of his chronic obstructive
pulmonary disease and spoke to him about quitting cigarette smoking. In a September 5, 2012,
letter, Dr. Patel opined that there was no evidence of occupational pneumoconiosis in this case. It
was his opinion that Mr. Sizemore’s conditions of respiratory insufficiency with left sided chest
pain, shortness of breath, and dyspnea on exertion with frequent coughing were chronic in nature
and will require medication for an indefinite period of time. Mr. Sizemore was also treated by
Charles Porterfield, D.O., and on January 19, 2012, Dr. Porterfield asserted that his symptoms of
restrictive lung disease and pleural thickening are related to his crush injury. He opined that his
cough may also be related because the left lung compression may be more difficult to clear than
the right lung. Dr. Porterfield opined that there was no indication of chronic obstructive
pulmonary disease.

        In an April 25, 2012, letter to Dr. Patel, the claims administrator attached a summary that
stated that as a result of the injury, Mr. Sizemore developed a chest wall deformity and chronic
fibrosis with pleural thickening. Tests show restrictive lung disease, but the condition is not one
that progresses. It was noted that he is a long-time smoker and has been diagnosed with chronic
obstructive pulmonary disease and occupational pnuemoconiosis, neither of which are
compensable conditions in the claim and treatment for them is therefore not payable. The current
medications were listed as Combivent, Spiriva, Theophylline, Qvar, and Nasonex, which are
medications for chronic obstructive pulmonary disease, asthma, and allergies. A second letter
dated May 18, 2012, indicates that Dr. Patel reported to the claims administrator in a phone
conference that 85-90% of the treatment Mr. Sizemore was receiving at that time was related to
pulmonary fibrosis, which would not have been caused by his crush injury. Dr. Patel stated that
the medications currently prescribed (Combivent, Spirivia, Theophylline, Qvar, and Nasonex)
were not related to the crush injury.

         An independent medical evalution was performed by Dominic Gaziano, M.D., on
October 7, 2013. Dr. Gaziano noted that pulmonary function tests show that Mr. Sizemore’s
impairment is due to the restrictive nature of the chest wall injuries rather than any intrinsic
interstitial lung disease. However, he found that the bronchospastic condition is not a result of
the compensable injury. He stated that Levaquin is an antibiotic to be used intermittently for
acute respiratory infections and Neurontin is not a respiratory medication and may be used for a
neuropathic manifestation of the chest wall and shoulder pain. Prednisone, Combivent, Qvar,

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Spiriva, and Theophylline are medications that are used for obstructive airway diseases and, in
Dr. Gaziano’s opinion, are not reasonably related to the compensable injury.

        The Office of Judges modified the claims administrator’s decision in its February 11,
2014, Order and authorized Neurontin. It found that the medications Levaquin, Prednisone,
Combivent, Qvar, Spiriva, and Theophylline are primarily used for the treatment of asthma and
chronic obstructive pulmonary disease. Though Mr. Sizemore suffered a chest wall injury, the
injury has been stable over the years. Dr. Patel’s notes did not support any conclusion that the
medications are related to the compensable injury. In fact, Dr. Patel agreed in a phone conference
with the claims administrator that most of the treatment he was rendering was not for the
compensable injury. The Office of Judges determined that the medical records contradict the
letters of Drs. Patel and Porterfield as they are full of references to chronic obstructive
pulmonary disease. The Office of Judges found that the records also indicate that the chronic
obstructive pulmonary disease is the result of Mr. Sizemore’s significant cigarette smoking
history. Furthermore, the Office of Judges concluded, based on Dr. Gaziano’s report, that the
respiratory medications requested are for the treatment of obstructive pulmonary disease. Mr.
Sizemore’s chest wall injury caused restrictive pulmonary disease. The Office of Judges noted
that smoking is a significant cause of obstructive pulmonary disease. The Office of Judges did
find, however, that Neurontin should be authorized because Dr. Gaziano stated that it is for chest
wall and shoulder pain, which are most likely related to the compensable injury. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on May 30, 2014.

       On appeal, Mr. Sizemore argues that he has 25-30% left lung impairment due to his
compensable injury, and his medications should therefore be authorized. The West Virginia
Office of the Insurance Commissioner asserts that Mr. Sizemore failed to prove that the
requested medications are for the treatment of the compensable injury. It asserts that Dr. Gaziano
opined that the only medication that is related to the compensable injury is Neurontin. After
review, we agree with the reasoning of the Office of Judges and the conclusions of the Board of
Review. The evidentiary record indicates that the only medication that is reasonably related to
the compensable injury is Neurontin. The other medications appear to be for the treatment of Mr.
Sizemore’s other non-compensable lung conditions.

        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: March 27, 2015




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

DISSENTING:
Justice Menis E. Ketchum




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