GEORGE F. BUTCHER, Claimant Below, Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and A C DELLOVADE, INC., Employer Below, Respondent
BOR
Appeal No. 2051271, Claim No. 800025170
MEMORANDUM DECISION
Petitioner
George F. Butcher, by Patrick K. Maroney, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. West Virginia Office of the
Insurance Commissioner, by Noah A. Barnes, its attorney,
filed a timely response.
The
issue on appeal is whether additional medical benefits should
be authorized in the claim. This appeal originated from the
March 20, 2015, and March 31, 2015, claims
administrator's decisions denying the request for a stair
lift and scooter, and denying the request for a men's
depth inlay shoe and an ankle foot orthosis spiral
prefabricated brace, respectively. In its April 11, 2016,
Order, the Workers' Compensation Office of Judges
affirmed the decisions. The Board of Review's Final Order
dated September 29, 2016, affirmed the Order of the Office of
Judges. 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.
George
F. Butcher, an ironworker, was injured in the course of his
employment on October 3, 1979, when he fell forty feet and
landed on his two feet which crushed the ankle joint and
broke the upper tibia of his leg, crushed both wrists, and
compressed some vertebrae in his lower back. His left leg had
to be amputated below the knee one year later after an
unsuccessful bone fusion.
Mr.
Butcher began seeing Suzann Weathers, M.D., for treatment
regarding his compensable injury. On October 27, 2014, Dr.
Weathers authored a statement indicating that Mr. Butcher had
a prosthesis and would benefit from a scooter and a stair
lift. She opined that these items were medically necessary
and officially requested that they be authorized on February
18, 2015. On February 24, 2015, the claims administrator
notified Mr. Butcher that there was not enough medical
evidence submitted to support the request for a stair lift
and scooter. The claims administrator requested that
additional information be sent.
On
March 11, 2015, Dr. Weathers authored another statement and
indicated that there was medical necessity for a men's
depth inlay shoe and an ankle foot orthosis spiral
prefabricated brace due to right foot drop/ankle instability
secondary to total knee replacement.[1]On March 18, 2015, the claims
administrator notified Mr. Butcher that there was not enough
medical evidence submitted to support the request for a
men's depth inlay shoe and an ankle foot orthosis spiral
prefabricated brace. Additional information was requested.
The
claims administrator denied the request for a stair lift and
scooter on March 20, 2015. The claims administrator stated
that no medical evidence was submitted after its request for
additional information on February 24, 2015. Similarly, the
claims administrator denied the request for a men's depth
inlay shoe and an ankle foot orthosis spiral prefabricated
brace on March 31, 2015, because there was not enough medical
evidence to support the request and no additional information
was submitted.
On July
14, 2015, Mr. Butcher testified in a deposition that that he
wears a prosthesis which gives him trouble walking up and
down stairs because of neuromas and phantom pain. This also
affects his balance. Putting one foot down at a time is very
painful and he has fallen down the stairs a few times. Mr.
Butcher testified that he goes up or down the stairs one at a
time by sitting and lifting himself. He stated that three
separate companies were authorized to visit his home for
measurements on the steps and provide estimates. Mr. Butcher
also testified that his doctor requested a scooter to help
him get around as his walker slowed him down in trying to
keep up with his wife. Mr. Butcher has a hard time gripping
the handles of the walker because of arthritis that developed
in his fingers after he broke both wrists in the compensable
injury. Mr. Butcher has difficulty walking due to the neuroma
and phantom pain. He wears five ply socks because with each
step, his stump goes further into the prosthesis. Mr. Butcher
testified that the shoe inlays fit tight around the
prosthesis and that both shoes contain inlays. If only one
shoe were to have an inlay, his balance would be off. Mr.
Butcher sees Dr. Weathers about every three months for
treatment of the blisters and neuromas on his stump.
On
April 11, 2016, the Office of Judges issued its Order and
stated that the compensable conditions of the claim were not
submitted into evidence. Dr. Weathers requested the scooter,
stair lift, men's depth inlay shoe, and an ankle foot
orthosis spiral prefabricated brace, stating they were
medically necessary, but did not provide a rationale of how
the diagnoses relate to the requested equipment. Regarding
Dr. Weathers's request for the men's depth inlay shoe
and ankle foot orthosis spiral prefabricated brace, the
Office of Judges noted that the reports submitted suggest
that these pieces of equipment are for Mr. Butcher's
right foot drop/ankle instability secondary to total knee
replacement. The right leg/knee is not a compensable
component of the claim and thus the Office of Judges
determined that the claims administrator's denial of the
inlay shoe and ankle foot orthosis brace were affirmed.
Regarding the stair lift and scooter, the Office of Judges
found that there was insufficient information on which to
authorize the equipment. The claims administrator requested
additional information concerning the request for a stair
lift and a scooter but the information was never supplied and
thus the request was denied. The Office of Judges affirmed
the denial of the stair lift and the scooter. The Board of
Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on September 29,
2016.
We
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review. Mr. Butcher has
not met his burden. The claims administrator requested
additional information on two different occasions and Mr.
Butcher failed to supply any additional medical evidence
supporting his claim. The evidence of record is not
sufficient to show how the requested medical benefits are
related to Mr. Butcher's 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.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin J. Davis, Justice Margaret L. Workman, Justice Menis ...