                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                  May 14, 2013

                                                                             RORY L. PERRY II, CLERK

LEON J. ZACKOWSKI,                                                         SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0983	 (BOR Appeal No. 2045411)
                   (Claim No. 2006024400)

DODRILL HEATING AND COOLING, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Leon J. Zackowski, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Dodrill Heating and Cooling,
LLC, by Marion E. Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 3, 2011, in which
the Board affirmed a November 22, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 11, 2010,
denial of authorization for hyalgan injections as not related to a compensable component of Mr.
Zackowski’s injury. 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.

        Mr. Zackowski was tearing down a retaining wall in the employment of Dodrill Heating
and Cooling, LLC on January 12, 2006, when a large block from the wall fell on him, injuring
his right knee. The injury was held compensable and his received surgery to repair the injury.
But the claimant has since had consistent pain in his right knee and the knee frequently gives out.
Mr. Zackowski requested authorizations to receive hyalgan injections to reduce the swelling in
his knee. The claims administrator denied authorization for additional treatment on May 11,
2010, leading to this appeal.
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        Under West Virginia Code § 23-4-3(a)(1) (2005), the claims administrator is required to
provide reasonably required medical services and treatments related to an employee’s
compensable injury. In this case, the Office of Judges found that Mr. Zackowski did not meet his
burden of proving that the requested treatments were medically and reasonably related to his
compensable injury. The only evidence Mr. Zackowski puts forward of his current condition is
the February 5, 2010, report from Scott Orthopedic Center, Inc. Although the report
demonstrates Mr. Zackowski’s need for hyalgan injections, it does not demonstrate that his need
is related to his compensable injury. Since Mr. Zackowski did not present any evidence to
demonstrate the link between the treatments and his compensable injury, the Office of Judges
could not reverse the decision of the claims administrator. The Office of Judges found that Mr.
Zackowski had a degenerative condition, chondromalacia of the patella, which more likely
resulted from pre-existing and non-work-related injuries than his compensable injury.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the findings and reasoning of the Office of Judges. Mr. Zackowski did not
meet his burden of proving that the requested treatments were medically and reasonably related
to his compensable injuries. The Board of Review was correct in affirming the Order of the
Office of Judges.

        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: May 14, 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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