STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 3, 2014 

RORY L. PERRY II, CLERK 

ROGER J. SPENCER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1216 (BOR Appeal No. 2048394) 

(Claim No. 960053955) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

HOBET MINING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Roger J. Spencer, by Steven M. Thorne, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of 

Insurance Commissioner, by Noah Barnes, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 6, 2013, in 

which the Board affirmed a May 3, 2013, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s October 11, 2012, decision 

denying Mr. Spencer’s request for retro-authorization for hospital admittance and lumbar 

decompression surgery at L2-3. 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. 

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Mr. Spencer worked as a maintenance operator for Hobet Mining, Inc. On June 3, 1996, 

Mr. Spencer was squatting to change the oil on a coal truck when he felt something pop. The 

claim was held compensable for the following diagnoses: impotence of organic origin, 

neurogenic bladder not otherwise specified, incomplete bladder emptying not otherwise 

specified, reaction to spinal/lumbar, and unspecified thoracic/lumbosacral neuritis. Mr. Spencer 

underwent a lumbar decompression surgery at L2-3 levels on May 22, 2012. Mr. Spencer has 

filed an application requesting retro-authorization for hospital admittance and lumbar 

decompression surgery at L2-3. Robert B. Walker, M.D., found Mr. Spencer to have reached 

maximum medical improvement for his compensable conditions, and attributed Mr. Spencer’s 

current complaints to non-compensable conditions. The claims administrator denied the request 

for retro-authorization for hospital admittance and lumbar decompression surgery at L2-3 

because the surgery is not related to the work injury. 

The Office of Judges affirmed the claims administrator’s decision and found the 

requested treatment is not medically related and reasonably necessary to treat the compensable 

injury. The Board of Review affirmed the Order of the Office of Judges. On appeal, Mr. Spencer 

disagrees and asserts that his compensable injury has progressed requiring further treatment. Mr. 

Spencer further asserts that West Virginia Code of State Rules § 85-20 (2006) allows for 

continued treatment in exceptional cases and that he meets the exception because his treatment is 

now chronic. The West Virginia Office of Insurance Commissioner maintains that significant 

evidence shows that Mr. Spencer has degenerative changes that are unrelated to his workplace 

injury. The West Virginia Office of Insurance Commissioner further maintains that 

developmental spinal stenosis is present at L1 through L3, which is also unrelated to the 

workplace injury, and that the lumbar decompression surgery was performed at the L2-L3 level. 

The West Virginia Office of Insurance Commissioner argues that Dr. Walker found Mr. Spencer 

at maximum medical improvement and that his treatment needs for his work-related injury 

would not include surgery. 

The Office of Judges relied on the diagnostic test results and the findings of Dr. Walker. 

On June 9, 1999, a lumbar myelogram revealed developmental central stenosis in the upper spine 

between L1-2 and L2-3 levels, and on the same date, a CT scan of the lumbar spine postmyelography revealed severe spinal stenosis at L3-4 level with minimal central bulge at L5-S1 

with degenerative disc gas phenomena. The Office of Judges noted that the presentation of 

degenerative conditions shortly after the compensable injury supports that the degenerative 

conditions were pre-existing and were present prior to the compensable injury. The Office of 

Judges also found this was further supported by Dr. Walker’s January 10, 2011, report. Dr. 

Walker opined that Mr. Spencer’s current complaints are contributed to by pre-existing nonwork-related conditions including a developmentally small spinal canal as well as probable 

acquired additional spinal stenosis from minor trauma and heavy work occurring prior to the 

acute injury. Dr. Walker concluded that neither of these were directly attributable to the injury of 

June 3, 1996, and that the treatment in this claim has not been necessary and appropriate solely 

as a result of the subject injury. The Office of Judges found that Mr. Spencer is suffering from 

pre-existing conditions that are preventing recovery, but have not aggravated the compensable 

injury. Therefore, based on the compensable diagnoses in this claim and the diagnostic studies, 

the Office of Judges concluded the requested surgery is to treat a non-compensable condition and 

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that Mr. Spencer failed to show the treatment is medically related and reasonably necessary to 

treat the subject injury. 

This Court agrees with the findings of the Office of Judges and the conclusion of the 

Board of Review. Diagnostic testing revealed degenerative and developmental, pre-existing 

conditions. Dr. Walker concluded that Mr. Spencer’s developmentally small spinal canal, along 

with his probable acquired additional spinal stenosis, occurred prior to the acute injury and was 

attributing to his current complaints but was not directly related to the incident of June 3, 1996. 

Dr. Walker found Mr. Spencer to have reached maximum medical improvement for the 

compensable injury. Mr. Spencer has failed to show the requested surgery is medically related 

and reasonably necessary to treat his compensable injury, and therefore the request for retroauthorization for the surgery is denied. 

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: December 3, 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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