STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 9, 2014 

RORY L. PERRY II, CLERK 

WILLIAM BARCELONA, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0186 (BOR Appeal No. 2047302) 

(Claim No. 2011012800) 

HOMESTYLE DINING, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner William Barcelona, by William Gallagher, his attorney, 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 28, 2012, in 

which the Board affirmed a May 17, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 6, 2011, 

decision which denied a request for a repeat cervical MRI and a lumbar MRI without contrast. 

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. Barcelona, a restaurant worker, was injured in the course of his employment on 

October 9, 2010, while emptying a garbage can into a dumpster. The claim was held 

compensable for neck sprain and shoulder sprain. In a deposition on July 26, 2011, Mr. 

Barcelona testified that he previously injured his neck in 2007. Treatment notes by Gregory 

Wood, D.O., show that he was diagnosed with a herniated cervical disc. Mr. Barcelona stated 

that at the time of the injury he was lifting a heavy garbage can when he felt pain in his neck and 

back. Dr. Wood released Mr. Barcelona to return to work on February 9, 2011, and opined in a 

March of 2011 treatment note that the symptoms were originating from the cervical discs. 

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Bill Hennessey, M.D., performed an independent medical evaluation on March 24, 2011. 

He noted that Mr. Barcelona reported neck and thoracic pain that was worse when lying down. 

Dr. Hennessey opined that this does not indicate any spine-related conditions. Mr. Barcelona 

denied any lower back pain at that time. Dr. Hennessey opined that there was insufficient 

evidence in the case to support any new clinical findings following the compensable injury. Mr. 

Barcelona’s current symptoms were determined to be non-work-related and no further treatment 

was recommended. 

ChuanFang Jin, M.D., performed an independent medical evaluation on December 1, 

2011. She noted that the compensable conditions in the claim are neck sprain/strain and shoulder 

sprain/strain. She found that the injury suggests the shoulder pain originates from the cervical 

spine and that there is no actual shoulder injury. She determined Mr. Barcelona had reached 

maximum medical improvement for the neck sprain and his continued symptoms are likely the 

result of pre-existing degenerative cervical spine disease. Dr. Jin noted a September 17, 2007, 

treatment note by Dr. Wood which indicates Mr. Barcelona complained of severe neck and lower 

back pain with radiculopathy into the arms. Mr. Barcelona stated at that time that the symptoms 

had persisted for several years. Dr. Jin noted a 2007 MRI which showed a herniated C5-6 disc 

consistent with degenerative disc disease. A 2010 MRI, taken shortly after the injury, showed 

findings similar to the 2007 MRI, and a 2011 repeat MRI revealed multilevel degenerative 

changes. These three MRIs were determined to be consistent with degenerative disc disease 

rather than a traumatic disc injury. The requested diagnostic tests were found to be for the 

treatment of the pre-existing degenerative spine conditions and not the compensable injury. The 

claims administrator therefore denied a request for a repeat cervical MRI and a lumbar MRI 

without contrast on May 6, 2011. 

The Office of Judges affirmed the claims administrator’s decision in its May 17, 2012, 

Order. The Office of Judges held that there was no evidence of record to show that the lumbar 

spine is a compensable component of the claim. Dr. Jin noted that the claim is only compensable 

for neck sprain and shoulder sprain. This finding was determined to be consistent with the 

preponderance of the record which indicates Mr. Barcelona injured only his neck and shoulder as 

the result of his work-related injury. Accordingly, the Office of Judges found that the request for 

a lumbar MRI is not reasonably required in relation to the compensable injury. 

The Office of Judges found that the weight of the evidence also failed to establish that a 

repeat MRI of the cervical spine was medically necessary in this case. Charles Rosen, M.D., a 

neurologist, evaluated Mr. Barcelona and concluded that the neck symptoms were the result of 

old age. Similarly, Dr. Jin found that Mr. Barcelona’s symptoms are the result of progressively 

worsening degenerative cervical spine disease that pre-existed the compensable injury. 

Specifically, Dr. Jin noted that MRIs taken both before and after the injury showed findings 

consistent with degenerative disc disease as opposed to traumatic injury. The Office of Judges 

also noted that the evidence indicates the compensable injury resulted in a cervical strain. Dr. Jin 

stated that such an injury typically resolves within several weeks. Both Dr. Hennessey and Dr. 

Jin opined that no further treatment is necessary. The Office of Judges therefore found that Mr. 

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Barcelona failed to show that the requested MRIs were reasonably required for the treatment of 

his compensable injury. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its November 28, 2012, decision. This Court agrees with the 

reasoning and conclusions of the Board of Review. The evidentiary record indicates Mr. 

Barcelona sustained a neck and shoulder strain in the course of his employment for which he has 

reached maximum medical improvement. His current symptoms are the result of pre-existing 

degenerative changes and the requested diagnostic tests are for the treatment of the pre-existing 

condition and not the compensable injury. 

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: June 9, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

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