STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 12, 2014 

RORY L. PERRY II, CLERK 

HARVEY L. CLARK JR., SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1270	 (BOR Appeal No. 2048559) 

(Claim No. 850060762) 

ITMANN COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Harvey L. Clark Jr., pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated November 22, 2013, in 

which the Board affirmed a June 25, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 18, 2013, 

decision denying Mr. Clark’s request for authorization of a neurosurgical consultation at Wake 

Forest Baptist Medical 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. Clark has requested authorization of a consultation with a neurosurgeon at Wake 

Forest Baptist Medical Center. In support of his request, Mr. Clark submitted a July 10, 2008, 

lumbar spine MRI report which revealed an apparent L3-L4 surgical fusion, significant spinal 

stenosis at L2-L3 with varying degrees of impingement at all other levels, and a right-sided disc 

protrusion at L5-S1. On March 18, 2013, the claims administrator denied Mr. Clark’s request for 

authorization of a neurosurgical consultation based on a finding that there is insufficient medical 

documentation to justify authorizing the requested consultation. In its Order affirming the March 

18, 2013, claims administrator’s decision, the Office of Judges held that Mr. Clark has failed to 

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show that the request for a neurosurgical consultation at Wake Forest Baptist Medical Center 

constitutes medically necessary and reasonably required treatment in relation to a compensable 

injury. 

The Office of Judges found that the request for authorization of a neurosurgical 

consultation is not contained in the evidentiary record, and further found that the evidentiary 

record contains no explanation regarding the medical necessity of the request for a neurosurgical 

consultation. The Office of Judges then found that the five-year-old lumbar spine MRI report 

submitted by Mr. Clark in support of his claim is insufficient to support a finding that the 

requested neurosurgical consultation should be authorized. The Board of Review reached the 

same reasoned conclusions in its decision of November 22, 2013. 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: November 12, 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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