STATE OF WEST VIRGINIA FILED 

July 15, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

PHILLIP R. BALL, 

Claimant Below, Petitioner 

vs.) No. 11-1126	 (BOR Appeal No. 2045548) 

(Claim No. 2002032810) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PANTHER BRANCH COAL CO., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Phillip R. Ball, pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by 

David L. Stuart, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated July 18, 2011, in which 

the Board affirmed a January 19, 2011, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s April 12, 2010, denial of 

Mr. Ball’s request for authorization for an MRI of his lumbar spine. 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. For these reasons, a memorandum 

decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 

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Mr. Ball was injured on August 31, 2001, in the course of his employment with Panther 

Branch Coal Co., while lifting a rail up onto a jack. Mr. Ball was diagnosed with an acute 

lumbosacral strain and the claim was found compensable for displaced intervertebral disc by the 

claims administrator on January 25, 2002. Mr. Ball was also granted a permanent partial 

disability award of 8% on October 21, 2004. 

Over the next decade, Mr. Ball received various treatments, including lumbar spine 

surgery on March 2, 2009. Mr. Ball has also received several MRIs, all of which indicated 

degenerative changes. Following his surgery in March of 2009, Mr. Ball had nearly a year of 

reduced back pain. But by the end of March of 2010, Mr. Ball went to Dr. Weinsweig, 

complaining of increasing back pain. On March 23, 2010, Dr. Weinsweig requested 

authorization from the claims administrator for an MRI to diagnose the cause of Mr. Ball’s 

symptoms in anticipation of future surgery. The claims administrator referred the case to Dr. 

Stemple for an evaluation of Mr. Ball’s need for an MRI. Dr. Stemple recommended against 

authorizing an MRI of Mr. Ball’s lumbar spine. Considering that Mr. Ball’s prior MRIs revealed 

signs of degenerative disc disease, Dr. Stemple believed an MRI would be an excessively 

sensitive diagnostic tool. Dr. Stemple opined that unless the MRI was requested to diagnose 

progressive and severe neurologic deficits or to rule out serious pathologies such as a tumor, it 

was an unnecessary diagnostic tool in this case. Based on Dr. Stemple’s recommendation, the 

claims administrator denied Dr. Weinsweig’s request on April 12, 2010. The denial was affirmed 

by the Office of Judges on January 19, 2011, and by the Board of Review on July 18, 2011, 

leading to this appeal. 

The Office of Judges concluded that there was no objective basis for authorizing a lumbar 

MRI and affirmed the claims administrator’s decision. The Office of Judges relied on the opinion 

of Dr. Stemple and found that although Mr. Ball was having pain, he had not submitted enough 

evidence to support his request for an additional MRI. The Board of Review adopted the findings 

of the Office of Judges and affirmed its Order on July 18, 2011. 

The conclusions of the Board of Review and the Office of Judges are based on a material 

mischaracterization of the evidence in the record. Mr. Ball has submitted enough evidence to 

justify his request for an additional lumbar MRI. Although the treatment notes of Dr. Weinsweig, 

indicating that Mr. Ball needs an additional MRI, are based primarily on Mr. Ball’s subjective 

complaints, there is sufficient evidence, considering the record as a whole, that the request is 

reasonably related to Mr. Ball’s compensable injury. 

For the foregoing reasons, we find that the decision of the Board of Review is clearly 

based on a material misstatement or mischaracterization of particular components of the 

evidentiary record. Therefore, the decision of the Board of Review is reversed, and the case is 

remanded with instructions to authorize an MRI of Mr. Ball’s lumbar spine according to Dr. 

Weinsweig’s March 23, 2010, request. 

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Reversed and Remanded. 

ISSUED: July 15, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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