STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

March 14, 2013
 

RORY L. PERRY II, CLERK
 

MARK E. SEXTON, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0719	 (BOR Appeal No. 2045033) 

(Claim No. 2001029323) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

C. C. COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Mark E. Sexton, by Reginald Henry, his attorney, appeals the decision of the 

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

Commissioner, by Gary Mazezka, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 29, 2011, in 

which the Board reversed an August 26, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s May 3, 2010, 

decision denying Mr. Sexton’s request for a repeat lumbar spine MRI. 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. For these reasons, a memorandum 

decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 

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Mr. Sexton injured his lumbar spine on November 11, 2000, when he fell off a truck. He 

is requesting authorization for a repeat lumbar spine MRI amid continued complaints of pain. 

The record indicates that Mr. Sexton has undergone numerous lumbar spine MRIs following the 

injury. A November 17, 2000, lumbar spine MRI and a February 14, 2002, lumbar spine MRI 

revealed an L5-S1 nerve root impingement. A February 5, 2009, lumbar spine MRI again 

revealed an L5-S1 nerve root impingement, and also revealed mild encroachment at L4-L5 and 

mild disc bulging at L3-L4. In 2010 Mr. Sexton’s treating physician, Dr. McNeel, began 

requesting another lumbar spine MRI to rule out spinal stenosis. 

In its Order reversing the May 3, 2010, decision of the claims administrator, the Office of 

Judges held that the evidence of record demonstrates that a repeat lumbar spine MRI is medically 

necessary and reasonably required treatment in relation to the compensable injury. The Board of 

Review found that the evidence of record fails to establish that Mr. Sexton’s condition has 

changed in the interval following his most recent MRI. 

In its Order, the Office of Judges noted that Dr. McNeel’s request for a repeat lumbar 

spine MRI is supported by the evidence of record. The Office of Judges found that Dr. McNeel’s 

opinion that Mr. Sexton requires another lumbar spine MRI is persuasive. We agree with the 

reasoning and conclusions of the Office of Judges. Therefore, Mr. Sexton is entitled to 

authorization for a repeat lumbar spine MRI. 

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 authorize a 

repeat lumbar spine MRI. 

Reversed and remanded. 

ISSUED: March 14, 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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