STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 20, 2014 

RORY L. PERRY II, CLERK 

JAMES SONES, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0655 (BOR Appeal No. 2047982) 

(Claim No. 2011007802) 

LEDCOR HOLDINGS (USA) LTD., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner James Sones, by Robert L. Stultz, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. Ledcor Holdings (USA) LTD., by Maureen 

Kowalski, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 20, 2013, in which 

the Board affirmed a December 13, 2012, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s March 9, 2012, decision 

which denied a request to reopen the claim for temporary total disability benefits from August 

17, 2010, to the present. In its Order, the Office of Judges also affirmed the claims 

administrator’s March 9, 2012, decision which denied a request to add displaced lumbar disc, 

lumbar spondylosis, and cervical spondylosis without myelopathy 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 

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. Sones, a construction worker, was injured in the course of his employment when he 

slipped and fell down a hill on August 17, 2010. His claim was held compensable on a no lost 

time basis for lumbar, cervical, and left shoulder sprains/strains by an Order of the Office of 

Judges on November 14, 2011. In that Order, the Office of Judges also held that the medical 

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evidence failed to show that Mr. Sones was temporarily and totally disabled. Ledcor Holdings 

(USA) LTD., offered Mr. Sones light duty work following his injury, which he utilized for a 

short period before leaving the position without notification. 

On January 5, 2012, Jessica Thomas, C.F.N.P., diagnosed Mr. Sones with lumbar 

spondylosis, cervical spondylosis without myelopathy, and displaced lumbar disc. Her treatment 

note indicates that a cervical MRI revealed mild spondylosis and foraminal narrowing, and a 

lumbar MRI revealed severe degenerative disc disease and disc herniations causing stenosis. She 

requested a diagnosis update for the conditions. Based upon Ms. Thomas’s findings, Mr. Sones 

filed to reopen his claim for temporary total disability benefits from August 17, 2010, to the 

present based upon an aggravation or progression of his condition and facts not previously 

considered. He also requested a reopening for medical benefits; however, he indicated that he 

had suffered no new illness or injury. The form was signed by Ms. Thomas who also indicated 

that there had been no aggravation or progression of a compensable injury since Mr. Sones was 

released to return to work days after his work-related injury. Mr. Sones testified in a deposition 

on April 19, 2012, that his pain had somewhat worsened since his compensable injury and stated 

that he had not been involved in any accidents since August 17, 2010. 

David Collipp, M.D., performed an independent medical evaluation of Mr. Sones on June 

28, 2012. At that time, Mr. Sones reported pain in his thoracic, lumbar, and cervical spine. Dr. 

Collipp diagnosed left shoulder strain and found that Mr. Sones reached maximum medical 

improvement three months after the compensable injury. He found no permanent impairment 

from the injury and opined that the neck and low back complaints are not casually related to the 

compensable injury. He did find that the medical records indicate Mr. Sones has cervical and 

thoracic strains but those strains do not result in permanent impairments. He determined that 

spondylosis, disc displacement, myelopathy, and radiculopathy are not casually connected to the 

work-related injury. Dr. Collipp noted that the MRIs Ms. Thomas relied upon were not made 

available for his review. 

The claims administrator denied a request to reopen the claim for temporary total 

disability benefits from August 17, 2010, to the present in its March 9, 2012, decision. In another 

decision of the same date, the claims administrator denied a request to add displaced lumbar disc, 

lumbar spondylosis, and cervical spondylosis without myelopathy to the claim. The Office of 

Judges affirmed both of the claims administrator’s decisions in its December 13, 2012, Order. 

The Office of Judges found that the claim was held compensable on a no lost time basis 

by an Office of Judges’ decision. In that decision, the Office of Judges also determined that there 

was no evidence demonstrating that Mr. Sones was entitled to temporary total disability benefits. 

In the instant case, Mr. Sones submitted medical reports from Ms. Thomas in which she opined 

that he was temporarily and totally disabled from August 17, 2010, to the present. Neither she 

nor Mr. Sones indicated that he had sustained an aggravation or progression of his compensable 

injury. The Office of Judges determined that since Ms. Thomas did not begin treating Mr. Sones 

until January 5, 2012, her assertion that he was temporarily and totally disabled before that date 

was not credible. It did find that she could reasonably represent that he was temporarily and 

totally disabled from January 5, 2012, to the present; however, she does not allege that he 

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suffered an aggravation or progression of his compensable injury. She stated that Mr. Sones’s 

disabling conditions involve a lumbar disc displacement, lumbar spondylosis, and cervical 

spondylosis without myelopathy. The Office of Judges determined that nothing in Ms. Thomas’s 

report indicates Mr. Sones is disabled from returning to light duty work based upon his 

compensable injuries. 

The Office of Judges noted that the diagnosis update was requested by Ms. Thomas, not 

Richard Clatterbuck, M.D., for whom she worked. The evidence does not show that Dr. 

Clatterbuck had any direct involvement in this case. The Office of Judges also noted that the 

cervical and lumbar MRIs that Ms. Thomas relied upon are not of record. It was therefore 

determined that Dr. Collipp’s opinion was of greater evidentiary value than that of Ms. Thomas 

and that the preponderance of the evidence failed to establish a causal connection between the 

requested diagnoses and the compensable injury. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its May 20, 2013, decision. We agree with the reasoning and 

conclusions of the Board of Review. There is no indication that Mr. Sones suffered a progression 

or aggravation of his compensable injury that would justify a reopening of his claim for 

temporary total disability benefits. Additionally, the evidentiary record fails to show that the 

requested diagnoses are causally connected to the compensable injury. 

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: October 20, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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