                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
CONSOLIDATION COAL COMPANY,                                                     October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0004	 (BOR Appeal No. 2046154)
                    (Claim No. 2005001243)

LOUIS P. ZACKEY,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Consolidation Coal Company, by Edward M. George III, its attorney, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Louis P. Zackey, by
M. Jane Glauser, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 13, 2011, in
which the Board affirmed a July 14, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s February 1, 2011,
decision denying the request for psychotherapy. 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.

        On June 24, 2004, Mr. Zackey suffered an injury when he was driving a car in a mine and
hit his head on a steel beam while going approximately fifteen miles per hour. The claim was
held compensable for concussion with no loss of consciousness and neck sprain. On November
23, 2010, Dr. McFadden concluded that psychotherapy would be beneficial to Mr. Zackey and is
reasonably necessary for the conditions caused by his compensable occupational injury. On
January 20, 2011, Dr. Cooper-Lehki concluded Mr. Zackey had reached maximum medical
improvement. The claims administrator denied Mr. Zackey’s request for psychotherapy


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       The Office of Judges reversed the claims administrator’s decision and held that Mr.
Zackey was entitled to authorization for psychotherapy, as requested in relation to his
compensable injury. On appeal, Consolidation Coal Company disagrees and asserts that Mr.
Zackey’s psychological condition was good in January of 2010 and that he chose not to undergo
psychotherapy, and therefore psychotherapy would not be helpful, needed, or wanted.

       The Office of Judges concluded that Mr. Zackey can still receive medical treatment after
being found to have reached maximum medical improvement. The claim has been held
compensable for the diagnosis of depressive disorder. Even though Dr. Cooper-Lehki found Mr.
Zackey had reached maximum medical improvement, she also found that psychotherapy would
help his symptoms and is used by many individuals with similar symptoms. Dr. McFadden
concluded that psychotherapy would benefit Mr. Zackey and would reduce his levels of
discouragement, frustration, and assist him with anger management. He further concluded that
psychotherapy was reasonably necessary for the conditions caused by his occupational injury.
Ultimately, the Office of Judges held that Mr. Zackey was entitled to psychotherapy for his
compensable injury. The Board of Review reached the same reasoned conclusions in its decision
of December 13, 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: October 4, 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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