Mike Walker v. Fortune Brands

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS November 1, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
MIKE WALKER, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 12-0157 (BOR Appeal No. 2046118)
(Claim No. 2011010893)

FORTUNE BRANDS,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Mike Walker, by George Zivkovich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Fortune Brands, by Aimee Stern, its
attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated January 10, 2012, in
which the Board reversed in part and affirmed in part a June 10, 2011, Order of the Workers’
Compensation Office of Judges. In its Order, the Office of Judges modified the claims
administrator’s June 4, 2010, decision which authorized an MRI and denied a request for an
EMG. The Office of Judges modified a July 16, 2010, claims administrator’s decision which
held the claim compensable for only a lumbar sprain, and denied temporary total disability
benefits. The Office of Judges also reversed a July 16, 2010, claims administrator’s decision
which denied a request for 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 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. Walker was working for Fortune Brands when he injured his lumbar spine while
loading windows on April 30, 2010. Mr. Walker has been treated by Dr. Folwell, who requested
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that the claim be held compensable for lumbar sprain, nerve root radiculopathy, and disc
displacement/derangement. Dr. Folwell also requested temporary total disability benefits, an
MRI, an EMG, and a neurosurgical consult. On June 4, 2010, the claims administrator denied a
request for an EMG, and authorized an MRI. On July 16, 2010, the claims administrator held the
claim compensable for only a lumbar sprain, and denied temporary total disability benefits
because Mr. Walker only missed three days of work. The claims administrator also denied a
request for a consultation with neurosurgery on July 16, 2010. The Office of Judges modified the
June 4, 2010, decision and authorized an EMG; modified the July 16, 2010, decision and held the
claim compensable for lumbar sprain, nerve root radiculopathy, and disc
displacement/derangement, and granted temporary total disability benefits from April 30, 2010,
through March 9, 2011, and thereafter as substantiated by proper medical evidence; and reversed
the July 16, 2010, decision, and authorized a neurosurgery consult.

The Board of Review reversed in part and affirmed in part the Office of Judges’ Order,
and held that the claim should not be compensable for disc displacement/derangement, that Mr.
Walker was not entitled to an EMG or neurosurgical consult, and that he was entitled to
temporary total disability benefits through October 25, 2010. On appeal, Mr. Walker argues that
the evidence establishes that the Office of Judges’ Order was correct and should be reinstated in
its entirety. We agree. The Board of Review relied on Dr. Mir’s October 25, 2010, evaluation to
find that the claim was not compensable for disc displacement/derangement, deny an EMG and
neurosurgery consult, and grant temporary total disability benefits through only October 25,
2010. Dr. Mir found that Mr. Walker’s disc displacement/derangement was due to preexisting
degenerative disc disease, and not the compensable injury. He also found that Mr. Walker
needed no further treatment, and had reached maximum medical improvement.

The Office of Judges concluded that the preponderance of the evidence established that
the claim should be held compensable for lumbar sprain, nerve root radiculopathy, and disc
displacement/derangement. It noted that Dr. Mir focused on the fact that Mr. Walker checked
that he had a history of back pain in 2005. However, as the Office of Judges noted, the reference
in medical records to a history of back pain was nonspecific, and the record establishes that Mr.
Walker received chiropractic treatment to his neck, but not his lumbar spine. Further, the Office
of Judges noted that while it was undisputed that Mr. Walker suffers from degenerative changes,
he was asymptomatic prior to the compensable injury on April 30, 2010. Thus, the record
establishes that the compensable injury resulted in a lumbar sprain, nerve root radiculopathy, and
disc displacement/derangement.

The Office of Judges further concluded that an EMG and neurosurgical consult were
reasonably required and medically related to the treatment of the compensable injury. It noted
that Mr. Walker persistently had radiculopathy and other problems attributable to nerve root
impingement, and would benefit from a consultation with a neurosurgeon. Finally, the Office of
Judges concluded that the evidence established that Mr. Walker remained temporarily and totally
disabled through at least March 9, 2011. We agree with the reasoning and conclusions of the
Office of Judges.

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 For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed, and the claim is remanded with instructions to reinstate the
June 6, 2011, Office of Judges’ Order.

Reversed and Remanded.

ISSUED: November 1, 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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