                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 19, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
WEST VIRGINIA OFFICE OF                                                       OF WEST VIRGINIA

INSURANCE COMMISSIONER
Commissioner Below, Petitioner

vs.)   No. 12-0540	 (BOR Appeal No. 2046489)
                   (Claim No. 2002041302)

HOMER E. WHITT,
Claimant Below, Respondent

and

GREENBRIER MOTOR COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner the West Virginia Office of Insurance Commissioner, by Gary Mazezka, its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Homer E. Whitt, by Reginald Henry, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 29, 2012, in
which the Board affirmed a September 12, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s March 18, 2011,
decision denying Mr. Whitt’s request for authorization for a revision and nerve repair of the
ulnar nerve at the wrist. 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.

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        Mr. Whitt injured his right upper extremity while unloading a diesel motor from a truck
on December 26, 2001. The claim was held compensable for pain in the limb, unspecified; injury
to a nerve in the shoulder; and medial epicondylitis of the elbow. On November 23, 2010, Dr.
Ryu, Mr. Whitt’s treating physician, reported that Mr. Whitt was experiencing recurrent ulnar
nerve neuropathy following four surgical procedures to treat his compensable injury. Dr. Ryu
stated that he hoped to treat Mr. Whitt’s current symptoms with Lyrica. On February 10, 2011,
Dr. Ryu reported that the attempted treatment with Lyrica had failed and that Mr. Whitt’s only
chance to resolve his symptoms is through an additional surgical procedure. On March 18, 2011,
Dr. Soulsby performed a records review and stated that a fifth procedure is not appropriate,
based in part on his finding that the four prior procedures have not provided lasting relief. On
March 18, 2011, the claims administrator denied Mr. Whitt’s request for authorization for a
revision and nerve repair of the ulnar nerve at the wrist.

       In its Order reversing the claims administrator’s March 18, 2011, decision and granting
authorization for a revision and nerve repair of the ulnar nerve at the wrist, the Office of Judges
held that the requested medical treatment is reasonable and necessary for the treatment of Mr.
Whitt’s compensable injury. The West Virginia Office of Insurance Commissioner disputes this
finding and asserts that Mr. Whitt has failed to establish that the requested medical treatment is
necessary for the treatment of his compensable injury.

        The Office of Judges found that Mr. Whitt has undergone four prior surgical procedures
and still suffers from symptoms that cannot be controlled through medication. The Office of
Judges then found that Dr. Soulsby, who recommended denying the requested treatment, has
never physically examined Mr. Whitt. Finally, the Office of Judges found that Dr. Ryu, who
stated that surgery is Mr. Whitt’s only option for improving his symptoms, is in the best position
to determine the future course of treatment because he performed Mr. Whitt’s prior surgeries.
The Board of Review reached the same reasoned conclusions in its decision of March 29, 2012.
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: December 19, 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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