STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS December 19, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
THOMAS J. DICARLANTONIO, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 12-0694 (BOR Appeal Nos. 2046237, 2046429, 2046505)
(Claim No. 2004047489)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
WEIRTON STEEL CORPORATION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Thomas J. Dicarlantonio, by Christopher J. Wallace, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. The West Virginia
Office of Insurance Commissioner, by Brandolyn Felton-Ernest, its attorney, filed a timely
response.
This appeal arises from the Board of Review’s Final Order dated May 10, 2012, in which
the Board affirmed August 8, 2011, September 22, 2011, and October 7, 2011, Orders of the
Workers’ Compensation Office of Judges. In its August 8, 2011, Order, the Office of Judges
affirmed the claims administrator’s March 31, 2011, decision which denied a request for a
neurosurgical evaluation. In its September 22, 2011, Order, the Office of Judges affirmed the
claims administrator’s December 30, 2010, decision denying a request for a cervical EMG. In its
October 7, 2011, Order, the Office of Judges affirmed the claims administrator’s April 15, 2011,
decision which denied a request to add displaced cervical disc to the claim. 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
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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. Dicarlantonio was injured on March 2, 2004, while he was working as a crew chief.
He sustained a cervical sprain and a shoulder sprain while he was attempting to pull himself up
about ninety-five inches in order to reach the top slab in a ten slab pile. The claim was held
compensable on November 4, 2004. Mr. Dicarlantonio was treated with physical therapy and
medication and was able to return to work.
In April of 2005, Dr. Mark A. Fye evaluated Mr. Dicarlantonio and diagnosed him with
a C5-6 disc herniation. Dr. Robert Durning also noted a herniated disc when he evaluated Mr.
Dicarlantonio on April 3, 2006. He also found, however, that Mr. Dicarlantonio suffered from
degenerative changes and had reached maximum medical improvement for his compensable
condition. Mr. Dicarlantonio was granted an 8% permanent partial disability award for his
cervical sprain. He was evaluated by Dr. Victoria A. Langa in March of 2010. Dr. Langa also
found that Mr. Dicarlantonio had reached maximum medical improvement for the compensable
condition. It was Dr. Langa’s opinion that Mr. Dicarlantonio’s current complaints were the result
of degenerative disc disease and were unrelated to the compensable injury of March 2, 2004.
Dr. Steven H. Masico, Mr. Dicarlantonio’s family physician, requested that the claims
administrator approve a cervical EMG to determine the extent of the herniation of the C5-6 disc.
That request was denied on December 30, 2010. The Office of Judges, in its September 22, 2011,
Order, affirmed the denial. The Office of Judges found that the evidentiary record indicated that
the requested treatment was unrelated to the compensable cervical sprain. The Office of Judges
relied on the medical reports of Drs. Langa and Durning. They both indicated that Mr.
Dicarlantonio had reached maximum medical improvement, and that he suffered from age-
related conditions that were unrelated to his compensable injury.
On March 31, 2011, Dr. Masico’s request for a neurosurgical evaluation was also denied
by the claims administrator. The Office of Judges affirmed this denial as well. The Office of
Judges held that the condition causing the need for a neurosurgical evaluation was not
compensable. It found that the evidentiary record indicated that Mr. Dicarlantonio already
reached maximum medical improvement, and his current condition is the result of degenerative
changes not caused by the compensable injury.
Dr. Masico also made a request to add displaced cervical disc to the claim. The claims
administrator denied this request on April 15, 2011. The Office of Judges affirmed that decision
in its October 7, 2011, Order. It held that there was not enough evidence in the record to support
the addition of the condition. Dr. Masico recommended addition of the condition to the claim but
failed to provide medical evidence to support his recommendation. Drs. Fye and Durning’s
reports finding that Mr. Dicarlantonio had a herniated disc were not considered to be time-
relevant and failed to support the addition of the displaced cervical disc to the claim.
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The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Orders on May 10, 2012. The Board of Review also acknowledged that
Mr. Dicarlantonio was granted an 8% permanent partial disability award based on a report by Dr.
Durning which included impairment for cervical herniated discs. However, the Board of Review
found that the claims administrator’s and Office of Judges’ decisions denying the request to add
the condition and authorize treatment were still proper, because the evidence of record did not
establish that the cervical herniated disc resulted from the March 2, 2004, compensable injury.
This Court agrees with the reasoning and conclusions of the Board of Review. Mr.
Dicarlantonio has been found, by two different doctors, to have reached maximum medical
improvement. In addition, both Drs. Durning and Langa noted that Mr. Dicarlantonio suffers
from degenerative changes. Dr. Langa’s report stated that Mr. Dicarlantonio’s current problems
are unrelated to the compensable injury. This Court finds that the evidentiary record supports the
decision of the Board of Review.
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 19, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II
DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
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