                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 March 6, 2013

                                                                            RORY L. PERRY II, CLERK

KEVIN LEE HOEBEKE,                                                        SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0793	 (BOR Appeal No. 2045119)
                   (Claim No. 860048319)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

GENERAL TIRE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Kevin Lee Hoebeke, by George Zivkovich, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Gary Mazezka, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 21, 2011, in
which the Board affirmed a September 13, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 4, 2009,
decision denying Mr. Hoebeke’s request for an MRI. 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. Hoebeke injured his shoulder on April 7, 1986, while working as an automotive
technician, and the claim was held compensable for sprain/strain of the rotator cuff, cervical
spondylosis with myelopathy, and carpal tunnel syndrome. On April 14, 2009, Mr. Hoebeke’s
treating physician, Dr. Rao, stated in a treatment note that he would like approval for an MRI.
On September 17, 2009, Dr. Mansour performed an independent medical evaluation and found
that Mr. Hoebeke was at maximum medical improvement and that no further diagnostic testing
was indicated.

        In its Order affirming the claims administrator’s December 4, 2009, decision, the Office
of Judges held that the preponderance of the evidence fails to establish that the requested MRI is
either reasonable or necessary medical treatment. Mr. Hoebeke disputes this finding, and asserts
that Dr. Rao, as his treating physician, is in the best position to determine the necessity of the
requested MRI.

        The Office of Judges noted that the claims administrator’s decision does not specify what
portion of Mr. Hoebeke’s anatomy was to be examined during the MRI, but then found that Dr.
Rao’s treatment notes indicate that the cervical and thoracic spine were to be the subject of the
study. The Office of Judges then found that the report of Dr. Mansour is the most detailed and
most recent medical evidence regarding Mr. Hoebeke’s current condition. Finally, the Office of
Judges found that Dr. Mansour’s conclusion that Mr. Hoebeke had reached maximum medical
improvement “constitutes the most credible analysis of the present fact situation”. The Board of
Review reached the same reasoned conclusions in its decision of April 21, 2011. 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 6, 2013

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

DISSENTING:
Justice Menis E. Ketchum

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