                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 3, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES P. BAILEY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0824 (BOR Appeal No. 2048082)
                   (Claim No. 2012009867)

ALPHA NATURAL RESOURCES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner James P. Bailey, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Alpha Natural Resources, Inc., by
Robert J. Busse, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 5, 2013, in which
the Board affirmed a January 2, 2013, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s February 21, 2012, decision
which denied a request to add the thoracic spine as a compensable component of the claim and
denied an MRI and physical therapy for the thoracic 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 and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Mr. Bailey, a coal miner, was injured on September 15, 2011, while working
underground when a large piece of rock fell and struck his head. He was treated that day at
Raleigh General Hospital where he reported neck pain, stiffness, and a headache. The claim was
held compensable for contusion of the face, scalp, and neck. On September 26, 2011, Mr. Bailey
was again treated at Raleigh General Hospital. He reported lower back pain that began that
morning with no acute injury and was diagnosed with lumbar sprain/strain. Mr. Bailey was
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referred to Rajesh Patel, M.D., who diagnosed thoracic sprain, lumbar sprain, and lumbar
radiculitis.

        A physician’s review was performed by Rebecca Thaxton, M.D., on January 16, 2012, to
determine whether the thoracic spine should be added as a compensable component of the claim.
Dr. Thaxton stated that pursuant to West Virginia Code of State Rules § 85-20-37.2 (2006), Mr.
Bailey is outside of the timeframe guideline for the development/onset of symptoms of low to
mid-back sprain/strain injuries as a result of the compensable injury. The treatment note from the
date of injury does not document any lower back pain or injury, and on examination that day the
lower back was non-tender with painless range of motion. There was no diagnosis regarding the
mid to lower back. Dr. Thaxton opined that Mr. Bailey did not develop pain until ten days later,
which does not correlate with a work-related injury. She also noted that he has degenerative
changes of the lumbar and thoracic spine.

        The StreetSelect Grievance Board also recommended denying the addition of the thoracic
spine to the claim as well as a request for authorization of a thoracic MRI and physical therapy.
It determined that any residuals from the compensable injury would have manifested sooner, and
there was insufficient evidence to support a connection between the compensable injury and the
onset of pain more than a week later. It noted that a previous request to add the lumbar spine to
the claim was also denied.

        An independent medical evaluation was performed on July 26, 2012, by H.R. Fleschner,
D.C.C.R.P. He opined that Mr. Bailey suffered a traumatic lumbar sprain, a herniated disc
radiculitis ligamentous sprain, and a traumatic thoracic sprain with bulging. The lumbar and
thoracic injuries were not yet at maximum medical improvement. He stated that all of the
conditions are the result of the compensable injury. Prasadarao Mukkamala, M.D., disagreed in a
September 13, 2012, independent medical evaluation. Dr. Mukkamala found that Mr. Bailey did
not injure his lumbar or thoracic spine at the time of the compensable injury. He stated that a
sprain/strain would have caused pain within twenty-four hours of injury. Mr. Bailey did not
develop pain until several days later and was not working when the pain occurred.

       The claims administrator denied Mr. Bailey’s request to add the thoracic spine as a
compensable component of the claim and denied an MRI and physical therapy for the thoracic
spine on February 21, 2012. The Office of Judges affirmed the decision in its January 2, 2013,
Order. The Office of Judges found that despite Dr. Fleschner’s assertion, records from Raleigh
General Hospital dated September 15, 2011, and September 26, 2011, show that Mr. Bailey had
no lumbar or thoracic spine pain until September 26, 2011, eleven days after the compensable
injury occurred. Mr. Bailey reported on September 26, 2011, that he woke up in pain and he
denied any further injury. Drs. Mukkamala and Thaxton both noted that pain from a sprain/strain
presents no more than twenty-four hours after an injury. The Office of Judges determined that it
was illogical for a spontaneous onset of lumbar and thoracic pain to be related to an incident
which occurred eleven days prior.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 5, 2013, decision. On appeal, Mr. Bailey argues, per the
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reports of Dr. Patel and Dr. Fleschner, that he injured his thoracic spine as a result of the
compensable injury. Alpha Natural Resources, Inc., asserts that Mr. Bailey failed to meet his
burden of proof to establish that his compensable injury resulted in an injury to his thoracic
spine.

        After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. The evidentiary record indicates that Mr. Bailey did not
sustain an injury to his thoracic spine as a result of the compensable injury. The request for
medical treatment for the thoracic spine was therefore also properly denied.

        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: December 3, 2014

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

Justice Brent D. Benjamin, disqualified




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