                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 29, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DAVID H. KERNS,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1380 (BOR Appeal No. 2047185)
                   (Claim No. 2011017036)

MCELROY COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner David H. Kerns, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. McElroy Coal Company, by Edward
M. George III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 26, 2012, in
which the Board affirmed an April 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 3, 2011,
decision denying authorization for a cervical MRI. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Kerns worked as a coal miner for McElroy Coal Company. On November 2, 2010,
he injured his cervical spine when he hit his head on the canopy of a shuttle car. The claims
administrator held the claim compensable for a cervical strain. Mr. Kern then came under the
care of Joseph C. Maroon, M.D., who had previously treated Mr. Kern including performing a
C6-7 anterior cervical discectomy and fusion in February of 2007. Dr. Maroon found that an
MRI had been taken of Mr. Kerns’s cervical spine after the compensable cervical sprain, which
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revealed left lateral recess stenosis at C5-6 and postoperative changes from the fusion at C6-7.
Dr. Maroon indicated that Mr. Kerns had been doing well following the injury until the early part
of June of 2011 when he developed shooting pain in his neck and shoulder. Dr. Maroon
requested a repeat cervical MRI to evaluate Mr. Kerns’s additional symptoms. On August 3,
2011, the claims administrator denied authorization for a repeat cervical MRI. Notwithstanding
the denial, an MRI was taken of Mr. Kerns’s cervical spine which revealed broad-based
osteophytes at C5-6 with moderate spinal stenosis and moderate facet hypertrophy. Dr. Maroon
issued a second report, stating that the compensable injury had aggravated Mr. Kerns’s pre­
existing cervical problems. On April 19, 2012, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
October 26, 2012, leading Mr. Kerns to appeal.

        The Office of Judges concluded that the repeat cervical MRI was not needed for the
injury suffered in this claim. The Office of Judges found that Mr. Kerns suffered from
degenerative conditions related more to his prior fusion surgery than the November 2, 2010,
injury. The Office of Judges based this determination on the diagnostic results of the repeat MRI.
It found that none of the conditions revealed by the repeat MRI were compensable conditions of
the claim. The Office of Judges determined that the repeat MRI pointed to a pre-existing and
degenerative cause of Mr. Kerns’s symptoms, which precluded reimbursement for the scan. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

         The decision of the Board of Review was based on a material mischaracterization of the
relevance of the repeat MRI results. At the time of the authorization request, the evidence in the
record established a sufficient causal link between Mr. Kerns’s compensable cervical sprain and
the requested MRI. The record showed that a repeat MRI was needed to properly diagnose Mr.
Kerns’s symptoms and to evaluate him for further treatment. The fact that the MRI revealed a
degenerative and non-compensable cause of Mr. Kerns’s symptoms indicates, if anything, that
the MRI was an appropriate diagnostic method at the time of the request. Mr. Kerns has
sufficiently demonstrated that the requested MRI is medically related and reasonably required to
treat his compensable injury. Dr. Maroon provided the only medical opinion in the record, and he
supported authorizing the MRI. The record as a whole shows that the repeat MRI should be
authorized.

       For the foregoing reasons, we find that the decision of the Board of Review is 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 remanded with instructions to
authorize the repeat cervical MRI requested by Dr. Maroon.


                                                                        Reversed and Remanded.


ISSUED: April 29, 2014


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

DISSENTING:
Justice Brent D. Benjamin




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