                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DANNY D. HOBBS,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1231 (BOR Appeal No. 2047113)
                   (Claim No. 2003006332)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

SIMMONS FORK MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Danny D. Hobbs, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 5, 2012, in
which the Board affirmed an April 5, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 8, 2011,
decision which denied a request for referral for a neurosurgical consultation. 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. Hobbs, an equipment operator, injured his lower back in the course of his
employment when the piece of heavy equipment he was operating backed over a large rock
causing it to fall into a hole and stop suddenly. His claim was held compensable for organic
anxiety syndrome; organic affective syndrome; and sprain/strain of the neck, lumbosacral, and
lumbar regions. An MRI taken in September of 2002 revealed degenerative discs at L1-2 and L4­
S1 with moderate disc space narrowing. There was also a mild degree of hard disc protrusion
noted at L5-S1. An MRI taken in March of 2010 also showed degenerative changes in the
lumbosacral spine as well as scoliosis in the lower thoracic spine. Mr. Hobbs presented to the
emergency room on December 2, 2011, with complaints of numbness in his back and legs. He
reported that he fell at home two weeks prior and had experienced pain and numbness since. A
lumbar MRI revealed a moderately large L3-4 disc herniation and a small L2-3 posterior disc
bulge. A cervical MRI showed degenerative discs with small bulges and spurs as well as mild
cord displacement from a disc protrusion at C5-6. The petitioner was seen by Sai Gutti, M.D., on
January 5, 2012. His treatment note indicates Mr. Hobbs was examined by another physician
who recommended surgery. The claims administrator denied a request for referral for a
neurosurgical consultation on December 8, 2011.

        The Office of Judges affirmed the decision of the claims administrator in its April 5,
2012, Order. It found that Mr. Hobbs’s compensable injury occurred on July 18, 2002. The
compensable injuries in the claim consisted of strains, and there was no compensable injury
involving a herniated disc. The MRI performed in September of 2002, after the compensable
injury, failed to reveal a herniated disc. Mr. Hobbs reported that he fell at home two weeks prior
to the discovery of a herniated disc. He then began experiencing numbness and pain in his back.
The Office of Judges determined that it appeared that the injury at home necessitated the
December 2, 2011, treatment. It held that the neurosurgical consultation was requested to treat
Mr. Hobbs’s December of 2011 injury and not the compensable 2002 injury that occurred nearly
ten years 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 October 5, 2012, decision. The evidentiary record indicates
that Mr. Hobbs did not have a herniated disc following his compensable injury in July of 2002.
The disc herniation did not appear until after he fell at home and injured his back in December of
2011. The decision of the Board of Review is supported by the evidentiary record.

        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 12, 2014



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




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