                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                March 27, 2013

                                                                            RORY L. PERRY II, CLERK

KAZEM NASSERI,                                                            SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0973 (BOR Appeal No. 2045223)
                   (Claim No. 2005022288)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CCBCC OPERATIONS, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Kazem Nasseri, by Robert Stultz, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 24, 2011, in which
the Board affirmed an October 26, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 23, 2010, decisions
denying authorization for a left total knee replacement, and denying a request to reopen the claim
for consideration of temporary total disability 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 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. Nasseri was working for CCBCC Operations on November 24, 2004, when he
injured his left knee. From the record, it appears Mr. Nasseri has suffered various knee injuries
throughout his employment. On February 17, 2010, Dr. Zervos requested authorization for a left
total knee replacement. Dr. Zervos also requested that the claim be reopened for consideration of
temporary total disability benefits. On March 23, 2010, the claims administrator denied
authorization for the left total knee replacement, and denied the request to reopen the claim for
consideration of temporary total disability benefits.

        The Office of Judges affirmed the claims administrator’s Orders, and held that the
surgical procedure and request to reopen were not related to the compensable injury in this claim.
Mr. Nasseri disputes this finding and asserts that per the opinion of Dr. Zervos, he is entitled to
the requested surgery, and temporary total disability benefits while he was off recovering from
such surgery. The West Virginia Office of Insurance Commissioner maintains that the denial of
the requests is supported by a preponderance of the evidence.

        In affirming the claims administrator’s Orders, the Office of Judges noted that Dr. Zervos
consistently stated that Mr. Nasseri needed a total knee replacement, however, he failed to relate
that need to his 2004 injury specifically rather than other long standing knee conditions and other
injuries. The Office of Judges concluded that the evidence did not establish that the surgery was
medically related to the compensable injury in this claim. The Office of Judges also noted that
that the evidence did not show an aggravation or progression of the compensable condition in
this claim warranting a reopening of the claim for temporary total disability benefits. The Board
of Review reached the same reasoned conclusions in its May 24, 2011, decision. 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: March 27, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum


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