STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 30, 2013 

RORY L. PERRY II, CLERK 

MICHAEL L. BENNETT, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0183	 (BOR Appeal No. 2046180) 

(Claim No. 2009075972) 

MINE TEMP, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Michael L. Bennett, by Christopher Wallace and Raymond Hinerman, his 

attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review. 

Mine Temp, LLC, by Gary Nickerson and James Heslep, its attorneys, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 3, 2012, in 

which the Board affirmed a July 21, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 16, 2011, 

decision denying Mr. Bennett’s request for a referral to a spine center. 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. Bennett injured his lower back on January 19, 2009, when he fell while walking to a 

man trip. On January 21, 2009, the claim was held compensable for sprain/strain of the lumbar 

region. On December 14, 2010, Dr. Khan, Mr. Bennett’s treating physician, requested 

authorization for a referral to a spine center. On January 1, 2011, Dr. Condaras performed a 

records review. He noted that diagnostic imaging performed on January 19, 2009, was normal 

and found that Mr. Bennett’s two-and-a-half year old back injury should be healed. On January 

27, 2011, Dr. Mukkamala performed a records review and recommended denying the request for 

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a referral to a spine center. He also noted that the January 19, 2009, x-rays were normal and 

pointed out that the injury is a two-and-a-half year old soft tissue injury. On March 16, 2011, the 

claims administrator denied Mr. Bennett’s request for a referral to a spine center. 

In its Order affirming the March 16, 2011, claims administrator’s decision, the Office of 

Judges held that a referral to a spine center does not constitute reasonable medical treatment in 

connection with the compensable injury. Mr. Bennett disputes this finding and asserts that the 

evidence of record demonstrates that his treating physician’s request for a referral to a spine 

center is reasonable. 

The Office of Judges relied on the opinions of Dr. Condaras and Dr. Mukkamala, and 

noted that Dr. Mukkamala found that a spine clinic referral is not justified based on the medical 

record. The Office of Judges further found that the StreetSelect Grievance Board supported the 

denial of a referral to a spine center. Further, the Office of Judges noted that Dr. Grady found 

Mr. Bennett to be at maximum medical improvement. Finally, the Office of Judges found that 

the statements of record from Mr. Bennett’s treating physicians requesting the referral do not 

thoroughly relate his current symptoms to the compensable injury, and do not explain the 

apparent two year period during which there is no evidence of Mr. Bennett’s continued treatment 

for the compensable lumbar spine injury. The Board of Review reached the same reasoned 

conclusions in its decision of February 3, 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. 

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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