STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 19, 2013 

RORY L. PERRY II, CLERK 

BRIAN K. TAYLOR, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0541	 (BOR Appeal No. 2046559) 

(Claim No. 2010131535) 

DAVID W. TACKETT, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Brian K. Taylor, by Linda Garrett, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. David W. Tackett, by Gary Nickerson 

and James Heslep, his attorneys, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 29, 2012, in 

which the Board affirmed an October 13, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 18, 2010, 

decision denying Mr. Taylor’s request to add cervical disc herniation and cervical radiculitis as 

compensable conditions, and also denying his request for authorization for a C6-7 anterior 

cervical discectomy with fusion. 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. Taylor fractured his right ankle on April 13, 2010, when he fell off a ladder and 

landed on his feet on a rooftop. On April 21, 2010, the claim was held compensable for 

other/unspecified injury of the knee/leg/ankle/foot and closed astragalus fracture. On July 17, 

2010, Mr. Taylor presented at the emergency room with complaints of a tingling sensation in his 

left arm and left scapula/chest pain. He presented at the emergency room complaining of back 

pain again on July 22, 2010, and July 29, 2010. On July 29, 2010, a cervical spine MRI revealed 

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a moderate-to-large sized left central disc herniation at C6-7. On August 5, 2010, Dr. Miele 

evaluated Mr. Taylor and stated that his C6-7 disc herniation is most likely traumatic in nature. 

On August 20, 2010, Dr. Thaxton performed a records review and stated that Mr. Taylor’s 

request to add cervical disc herniation and cervical radiculopathy as compensable components of 

the claim should be denied. She further stated that Mr. Taylor’s request for authorization for a 

C6-7 anterior discectomy with fusion should be denied. She found that Mr. Taylor made no 

mention of neck or upper extremity pain when he presented at the emergency room immediately 

after his April 13, 2010, injury. She noted that Mr. Taylor did not begin complaining of back 

pain until July 17, 2010, and found that this does not correspond temporally with the April 13, 

2010, injury. On October 18, 2010, the claims administrator denied Mr. Taylor’s request to add 

cervical disc herniation and cervical radiculitis as compensable components of the claim, and 

also denied Mr. Taylor’s request for authorization for a C6-7 anterior cervical discectomy with 

fusion. 

In its Order affirming the October 18, 2010, claims administrator’s decision, the Office of 

Judges held that the evidence of record fails to demonstrate that a cervical disc herniation and 

cervical radiculitis should be added as compensable components of the claim, and further held 

that the evidence of record fails to demonstrate that a C6-7 cervical discectomy with fusion 

should be authorized. Mr. Taylor disputes this finding and asserts, based on the opinion of Dr. 

Miele, that cervical disc herniation and cervical radiculitis should be added as compensable 

components of the claim and that he is entitled to authorization for a C6-7 cervical discectomy 

with fusion. 

The Office of Judges found that Mr. Taylor did not complain of back pain until more than 

three months after the April 13, 2010, injury. The Office of Judges further found that the 

evidence of record indicates that when Mr. Taylor fell on April 13, 2010, he landed on his feet 

and did not strike his head or neck. The Office of Judges then found that the evidence of record 

does not support the conclusion that Mr. Taylor sustained a traumatic injury to his cervical spine 

as a result of the April 13, 2010, injury. The Board of Review reached the same reasoned 

conclusions in its decision of March 29, 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. 

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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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