                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 10, 2014
CARL MCFEELEY,                                                              RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                    OF WEST VIRGINIA



vs.)   No. 12-0911 (Board of Review Appeal No. 2046841)
                   (Claim No. 2007216179)

CITY OF HUNTINGTON,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Carl McFeeley, by Cathy Greiner, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The City of Huntington, by Scott
Sheets, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 13, 2012, in which
the Board affirmed a January 11, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed and modified the claims administrator’s April 28,
2011, decision denying a request to reopen the claim for medical benefits. The Office of Judges
modified the decision to reflect that it was an Order denying treatment rather than denying a
reopening for treatment. 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. McFeeley, a firefighter, was injured on January 13, 2007, when he was attempting to
rescue an elderly woman from a building fire. He testified in his deposition on November 9,
2011, that he entered the building, ran out of oxygen, and had to be rescued. He was taken to the
hospital and treated overnight for smoke inhalation. A few weeks after the fire, he began
experiencing problems sleeping due to nightmares and flashbacks. He asserted that he developed
problems performing his occupational duties and was eventually unable to return to work. He has
been placed on temporary total disability for post-traumatic stress disorder through the fire
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department, not through workers’ compensation. In his deposition, Mr. McFeeley also testified
that he had never been treated for or diagnosed with a mental illness before the January 13, 2007,
incident. The record indicates otherwise.

         The claims administrator denied a request to reopen the claim for medical benefits on
April 28, 2011. The Office of Judges affirmed the claims administrator’s decision and modified
it to reflect that it was an Order denying treatment rather than denying a reopening for treatment
in its January 11, 2012, Order. The Office of Judges concluded that a reopening request was
unnecessary in this case, because the request was for medical treatment. The Office of Judges
found that the treatment was requested for post-traumatic stress disorder and depression/bipolar
disorder. It determined that these conditions have not been deemed to be compensable
components of the claim. In this case, the Office of Judges concluded that neither party
introduced any evidence which actually indicates what the compensable diagnoses in the claim
are. It was noted that though the reports reflect that Mr. McFeeley received psychiatric services
before and after the compensable injury, none of those reports indicate that payment for those
services was made in connection with this claim. Accordingly, the Office of Judges held that Mr.
McFeeley failed to meet his burden of proof to establish that treatment for post-traumatic stress
disorder and depression/bipolar disorder is medically related and reasonably required to treat his
compensable injury.

        The Board of Review affirmed the Order of the Office of Judges. The Board of Review’s
reasoning and conclusions are supported by the evidentiary record. Pursuant to West Virginia
Code § 23-4-3 (2005), the claims administrator must provide medically related and reasonably
required medical treatment, healthcare, or healthcare goods and services. The treatment must be
for an injury or disease received in the course of or as a result of employment. West Virginia
Code § 23-4-1(a) (2008). It is unclear what the compensable conditions in this claim are.
Regardless, there is no evidence that the claim has been held compensable for post-traumatic
stress disorder or depression/bipolar disorder. There is also no evidence that treatment for these
conditions is necessary to treat a compensable injury in this claim.

        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: March 10, 2014




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CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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