Terrance Price v. W. Va. Office of Insurance Commissioner/Fire Mountain Restaurants

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
March 27, 2013
RORY L. PERRY II, CLERK
TERRANCE PRICE, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner

vs.) No. 11-0944 (BOR Appeal No. 2045250)
(Claim No. 2009082841)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

FIRE MOUNTAIN RESTAURANTS, INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Terrance Price, by George Zivkovich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Fire Mountain Restaurants, Inc., by
Mark Grigoraci, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated June 8, 2011, in which
the Board affirmed an October 20, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 11, 2009, decision
denying a request to add left C7 radiculopathy, left shoulder impingement, bilateral lumbar
radiculopathy, and greater occipital neuralgia as compensable conditions in 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
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. Price was injured while working for Fire Mountain Restaurants, Inc. when he fell.
The claim was subsequently held compensable for a cervical, lumbar, and sacroiliac sprain. On
June 11, 2009, the claims administrator denied a request by Dr. Shramowiat to add left C7
radiculopathy, left shoulder impingement, bilateral lumbar radiculopathy, and greater occipital
neuralgia as compensable conditions in this claim.

The Office of Judges held that the preponderance of the evidence did not establish a
causal connection between the compensable injury and the requested additional compensable
components. On appeal, Mr. Price disagrees and asserts that the evidence clearly establishes that
the requested conditions were the result of his work-related injury. Fire Mountain Restaurants
maintains that Dr. Shramowiat’s diagnoses are not supported by objective findings, and are
contradicted by Dr. Bachwitt, the treating chiropractor, and emergency room records. Dr.
Shramowiat noted left shoulder complaints, complaints of radiculopathy, and problems with
headaches. Dr. Kennedy, the treating chiropractor, stated that Mr. Price never complained of left
shoulder problems during his visits. Dr. Bachwitt evaluated Mr. Price and found that he had
sprain/strains of the cervical, thoracic, and lumbar spine.

In affirming the claims administrator’s Order, the Office of Judges concluded that the
claims administrator was correct to deny the addition of the requested diagnoses as compensable
conditions. The Office of Judges noted that Mr. Price did not complain of radiculopathy after the
compensable injury, and no objective findings indicated that he was suffering from radiculopathy
related to the compensable injury. Moreover, the Office of Judges found that the evidence did
not support a finding that Mr. Price’s left shoulder impingement was a result of the compensable
injury. It noted that Dr. Kennedy stated that Mr. Price had never complained of shoulder pain
since the compensable injury. The Office of Judges also noted that Mr. Price had been seen at the
emergency department of St. Joseph Hospital for headaches prior to the compensable injury, and
there was no evidence that the headaches had worsened to justify adding greater occipital
neuralgia as a compensable component. Thus, the Office of Judges concluded that the evidence
did not establish the requested conditions were related to the compensable injury. The Board of
Review reached the same reasoned conclusions in its decision of June 8, 2011. We agree with the
reasoning and conclusions 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.

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ISSUED: March 27, 2013

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

DISSENTING:
Justice Menis E. Ketchum

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