                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 30, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
FRANK A. BEKKERING,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0172	 (BOR Appeal No. 2046200)
                   (Claim No. 2009082121)

THE HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Frank A. Bekkering, by Christopher Wallace and Raymond Hinerman, his
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The Homer Laughlin China Company, by Lucinda Fluharty, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 31, 2012, in
which the Board affirmed a July 22, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 15, 2011,
decision denying Mr. Bekkering’s request to add major depressive disorder, single episode as a
compensable component of the claim. 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. Bekkering asserts that he developed major depressive disorder subsequent to the
development of work-related carpal tunnel syndrome. On December 7, 2010, the claims
administrator authorized a one-time psychiatric consultation with Dr. Nalluri following a request
from Mr. Bekkering’s treating physician. Mr. Bekkering was examined by Dr. Nalluri on
December 14, 2010, and was diagnosed with major depressive disorder resulting from work-
related carpal tunnel syndrome. On March 9, 2011, Dr. Nalluri submitted a diagnosis update
form requesting that major depressive disorder, single episode be added as a compensable
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component of the claim. The claims administrator denied the request to add major depressive
disorder as a compensable component based on a finding that Dr. Nalluri is not the treating
physician of record in the instant claim.

        In its Order affirming the March 15, 2011, claims administrator’s decision, the Office of
Judges held that the request to add major depressive disorder as an additional compensable
component was properly denied because the request was made by a psychiatrist who is not the
treating physician of record. Mr. Bekkering disputes this finding and asserts that the evidence of
record satisfies his required burden of proof, and that major depressive disorder should therefore
be added as a compensable component of the claim.

       In making its determination, the Office of Judges relied on West Virginia Code of State
Rules § 85-20-12.4 (2006) and § 85-20-12.4a (2006). West Virginia Code of State Rules § 85­
20-12.4 states in part:

               Services may be approved to treat psychiatric problems only if
               they are a direct result of a compensable injury. As a prerequisite
               to coverage, the treating physician of record must send the injured
               worker for a consultation with a psychiatrist who shall examine the
               injured worker to determine 1) if a psychiatric problem exists; 2)
               whether the problem is directly related to the compensable
               condition; and 3) if so, the specific facts, circumstances, and other
               authorities relied upon to determine the causal relationship.

        West Virginia Code of State Rules § 85-20-12.4a states that “[a] Diagnosis Update Form
WC-214 must be attached to the treating physician’s report in order to request the psychiatric
condition be added as an approved diagnosis.” The Office of Judges found that the Rules require
that Diagnosis Updates be completed by a treating physician. Further, the Office of Judges found
that West Virginia Code of State Rules § 85-20-6.6 (2006) assigns the responsibility of reporting
a claimant’s most accurate and correct condition, as well as changes in his diagnosis, to the
treating physician. Finally, the Office of Judges found that because Dr. Nalluri is not the treating
physician of record, the claims administrator’s denial of the addition of major depressive
disorder as a compensable component is in accordance with the Rules. The Board of Review
reached the same reasoned conclusions in its decision of January 31, 2012. 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 30, 2013
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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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