                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
JOHN M. SZOKE II,                                                             September 12, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1741 (BOR Appeal No. 2046081)
                   (Claim No. 990037649)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

GAIL ENTERPRISES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner John M. Szoke II, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 8, 2011, in
which the Board affirmed a June 13, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 9, 2011,
decision denying a request for medical benefits. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.


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        Mr. Szoke was injured while working for Gail Enterprises on October 28, 1998. The
claim was subsequently held compensable for the following conditions: sprain/strain thoracic
region; sprain/strain lumbosacral; displaced cervical intervertebral disc; adjustment reaction;
dislocation thoracic vertebrae; and sprain/strain of the neck. Mr. Szoke has suffered continuing
complaints relating to these conditions. On February 9, 2011, the claims administrator denied a
request for continued maintenance treatment by Dr. Kropac for nonspecific neck pain, and
authorization for the medications Zanax, Lortab, and Nuerontin. The Office of Judges affirmed
the claims administrator’s Order, relying on Dr. Mukkamala’s March 16, 2010, independent
medical evaluation.

        The Office of Judges held that the requested medical benefits were not reasonably
required medical treatment for the compensable injury of October 28, 1998. It relied heavily on
the report of Dr. Mukkamala to arrive at this conclusion. The Board of Review reached the same
reasoned conclusions. On appeal, Mr. Szoke argues that the preponderance of the evidence
clearly supports a finding that the treatment is reasonably required and medically related to the
compensable injury. The West Virginia Office of Insurance Commissioner maintains that Mr.
Szoke’s current problems are not related to the compensable injury but are related to the
degenerative changes shown on a 2010 MRI. Treatment records from Dr. Kropac document that
Mr. Szoke has continuing complaints in the neck and lower back, with radiation of pain,
numbness, and tingling. On March 16, 2010, Dr. Mukkamala performed an independent medical
evaluation and found that the compensable injury was only a soft tissue injury, despite the claim
being compensable for other conditions. Dr. Mukkamala concluded that the current pain is
nonspecific pain with no causal relationship with the soft tissue injury of October 28, 1998, and
that no further treatment is necessary. In correspondence from Dr. Kropac, he states he disagrees
with Dr. Mukkamala’s conclusions, noting that Mr. Szoke has a cervical disc herniation at two
levels as a result of the compensable injury, and will need ongoing care with regard to his neck
and lower back. In a March 7, 2011, treatment note, Dr. Kropac stated that the requested
medications allow Mr. Szoke to lead a more functional life existence than otherwise possible
given the restrictions and limitations resulting from the compensable injury.

         We disagree with the findings of the Board of Review. The preponderance of the
evidence establishes that Mr. Szoke sustained more than a soft tissue injury on October 28, 1998.
The record demonstrates that despite treatment, he suffers from continued complaints with his
neck and lower back. The Office of Judges relied on Dr. Mukkamala’s evaluation to find that the
current complaints are not related to the compensable injury. However, Dr. Mukkamala’s report
is flawed as he bases his opinion on a finding that the compensable injury was a mere soft tissue
injury, despite the record demonstrating otherwise. Dr. Kropac’s treatment records and
correspondence establish that Mr. Szoke suffers from a cervical disc herniation at two levels and
continued lower back pain with radiation. We find that Mr. Szoke is entitled to the requested
maintenance treatment by Dr. Kropac through office visits and the medications Zanax, Lortab,
and Neurontin.

       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

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of the Board of Review is reversed and remanded with instructions to grant the requested
medical benefits.

                                                                Reversed and Remanded.

ISSUED: September 12, 2013

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

DISSENTING:
Justice Robin J. Davis
Justice Menis E. Ketchum




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