STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 30, 2013 

RORY L. PERRY II, CLERK 

MICHAEL L. CHAPMAN, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0162	 (BOR Appeal No. 2046175) 

(Claim No. 2008029217) 

HOBET MINING, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Michael L. Chapman, by Anne Wandling, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Hobet Mining, LLC, by Bradley 

Crouser, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 18, 2012, in 

which the Board reversed a July 20, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed in part and affirmed in part the claims 

administrator’s December 29, 2010, decision denying authorization for an EMG of the bilateral 

upper extremities and a C4-5 anterior cervical discectomy with fixation/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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

Mr. Chapman was injured on January 11, 2008, while pulling himself onto a bulldozer. 

The claim was held compensable and he underwent surgery to repair a torn right rotator cuff. 

Following the rotator cuff repair, Mr. Chapman complained of neck pain. A July 22, 2008, 

cervical spine MRI revealed a moderate disc bulge at C4-5. However, an April 19, 2010, cervical 

spine MRI revealed a central disc herniation at C4-5. On November 11, 2010, Dr. Thaxton 

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performed a records review and found that the requested medical treatment should be denied. On 

April 18, 2011, Dr. Mukkamala found that the claims administrator’s December 29, 2010, denial 

of the requested medical treatment was proper. He stated that it is clear that the C4-5 disc 

herniation was not caused by the compensable injury because Mr. Chapman did not complain of 

neck pain immediately following the injury. He also referenced the results of the cervical spine 

MRIs. Mr. Chapman asserts that the requested cervical spine surgery constitutes reasonable and 

necessary medical treatment for the compensable injury. Mr. Chapman has not appealed the 

denial of his request for a bilateral EMG of the upper extremities. 

Mr. Chapman’s treating physicians have indicated that he sustained a neck injury on 

January 11, 2008. In its Order reversing the claims administrator’s decision and granting 

authorization for the requested C4-5 anterior cervical discectomy fixation/fusion, the Office of 

Judges pointed to a February 23, 2010, Office of Judges’ Order which authorized a repeat 

cervical spine MRI following continued complaints of neck pain. The Office of Judges then 

found that there is no evidence of record indicating that the progression of Mr. Chapman’s 

cervical spine condition, which is evidenced in the cervical spine MRIs, was the result of an 

independent intervening cause and held that the requested cervical spine surgery constitutes 

reasonable medical treatment secondary to the January 11, 2008, injury. In its Order reversing 

the July 20, 2011, Order of the Office of Judges and reinstating the December 29, 2010, claims 

administrator’s decision, the Board of Review held that the requested medical treatment is not 

medically necessary and reasonably required for the treatment of the compensable injury. We 

find that the Board of Review’s conclusion that the requested C4-5 anterior cervical discectomy 

fixation/fusion does not constitute reasonable and necessary medical treatment for the 

compensable injury is not supported by the evidence of record. 

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

a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision 

of the Board of Review is reversed and the claim is remanded with instructions to reinstate the 

July 20, 2011, Order of the Office of Judges which granted authorization for a C4-5 anterior 

cervical discectomy fixation/fusion. 

Reversed and remanded. 

ISSUED: October 30, 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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