William Michael Reese v. W. Va. Div. of Environmental Protection

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
April 23, 2013

RORY L. PERRY II, CLERK

WILLIAM MICHAEL REESE, SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Claimant Below, Petitioner

vs.) No. 12-1248 (BOR Appeal No. 2046991)
(Claim No. 2009086277)

WEST VIRGINIA DIVISION OF
ENVIRONMENTAL PROTECTION,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner William Michael Reese, by Patrick Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The West Virginia Division of
Environmental Protection, by H. Toney Stroud, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated September 21, 2012, in
which the Board affirmed a March 6, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 2, 2010,
decision denying Mr. Reese’s request to add other accident resulting from conflagration in other
and unspecified building or structure; unspecified site of foot sprain; unspecified site of
sprain/strain; unspecified disorder of lower leg joint; contusion of unspecified site; wrist sprain;
sprain of unspecified site of shoulder and upper arm; and sprain of unspecified site of hip and
thigh as compensable components. 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.

Mr. Reese sustained multiple injuries when he slipped and fell at work on April 1, 2009.
On September 28, 2010, Dr. Thaxton conducted a records review and found that there is no
medical evidence to support the addition of the requested compensable components to the claim.
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On October 29, 2010, the StreetSelect Grievance Board recommended denying Mr. Reese’s
request to add the requested additional compensable components to the claim. Both Dr. Thaxton
and the Grievance Board found that based on Mr. Reese’s history of chronic pain, any pain
symptoms still occurring more than one year after the April 1, 2009, injury are likely caused by
degenerative disease, and not by the April 1, 2009, injury.

In its Order affirming the November 2, 2010, claims administrator’s decision, the Office
of Judges held that Mr. Reese has failed to demonstrate that any of the requested additional
compensable components represent injuries sustained in the course of and resulting from his
employment. Mr. Reese disputes this finding and asserts that the evidence of record
demonstrates that the requested additional compensable components should be added to the
claim.

The Office of Judges relied on the Grievance Board’s recommendations and noted its
finding that there is no medical evidence to support Mr. Reese’s request to add the requested
additional compensable components to the claim. The Office of Judges further noted that the
only evidence of record in support of Mr. Reese’s request is a diagnosis update form stating that
he has multiple sites of pain, particularly in the right hand and wrist, and right hip and leg. The
Office of Judges then found that the Grievance Board relied on the opinion of Dr. Thaxton, and
further found that Dr. Thaxton’s report is the most persuasive. The Board of Review reached the
same reasoned conclusions in its decision of September 21, 2012. 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.

ISSUED: April 23, 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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