                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 11, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PAUL K. WROTEN,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0161 (BOR Appeal No. 2049894)
                   (Claim No. 2002015473)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

WEST VIRGINIA DIVISION OF HIGHWAYS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Paul K. Wroten, appearing pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Noah Barnes, its attorney, filed a timely response. The West Virginia Division
of Highways, by Xueyan Z. Palmer, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 26, 2015, in
which the Board affirmed a September 26, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 4, 2014,
decision denying Mr. Wroten’s request for further medical treatment. 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. Wroten was working for the West Virginia Division of Highways on July 17, 2001,
when a fence post hit him in the forehead. He lost consciousness and had to receive stitches. The
claim has been held compensable for the following: open wound of forehead, uncomplicated;
concussion with prolonged loss of consciousness; headache; neck sprain; nausea; unspecified
visual loss; contusion of orbital tissue; unspecified, contusion of eyeball; concussion unspecified;
and cervical spondylosis without myelopathy. The claim was closed for temporary total
disability benefits on December 19, 2001, and Mr. Wroten was denied a permanent partial
disability award on April 3, 2003. Mr. Wroten underwent back surgery and is requesting the
claim be reopened for additional medical treatment to help with his back surgery. The claims
administrator denied Mr. Wroten’s request for further medical treatment. It found that his request
was barred and cannot be given consideration because he has not sought treatment in the past
five years based primarily on West Virginia Code § 23-4-16(a)(4) (2005). It noted that it appears
Mr. Wroten is requesting a medical reopening in the wrong claim because this claim is
compensable for the neck only and his lumbar spine is compensable in Claim No. 2001040513.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Wroten’s claim is barred for further medical treatment under West Virginia Code § 23-4­
16(a)(4). The Board of Review affirmed the Order of the Office of Judges. On appeal, Mr.
Wroten disagrees and asserts that he has received medical attention numerous times for his back
and is seeking help to pay for his back surgery. The West Virginia Office of Insurance
Commissioner maintains that the Board of Review did not err because Mr. Wroten did not prove
the request for treatment was made within five years of the last date of service as required under
West Virginia Code § 23-4-16(a)(4) and that the evidence shows he has not had any service
provided for this claim in the past five years. West Virginia Division of Highways maintains that
Mr. Wroten did not present any evidence to show that he received workers’ compensation
benefits within five years of the date of his request to reopen and that there is no compensable
lumbar spine condition in this claim.

        The Office of Judges noted that the claim was closed for temporary total disability
benefits on December 19, 2001, and Mr. Wroten was denied a permanent partial disability award
on April 3, 2003. West Virginia Code § 23-4-16(a)(4) states that when medical or any type of
rehabilitation services has not been rendered or durable medical goods or other supplies paid
have not been received for a period of five years then no request for additional medical or any
type of rehabilitation benefits shall be granted nor shall any medical or any type of rehabilitation
benefits or any type or goods or supplies be paid by the claims administrator if they were
provided without a prior request. The Office of Judges found that Mr. Wroten’s evidence does
not demonstrate by a preponderance of the evidence that he has received authorized treatment
within the last five years and in fact the evidence actually shows it has been over five years since
he received treatment. The Office of Judges concluded that the claim is barred for further
medical treatment under West Virginia Code § 23-4-16(a)(4). The Board of Review agreed with
the findings and conclusions of the Office of Judges.

      This Court agrees with the Board of Review. The West Virginia Office of Insurance
Commissioner’s records show that the last payment for treatment in this claim through workers’
compensation was processed on July 14, 2006. There is no evidence of record that Mr. Wroten
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received coverage through his workers’ compensation claim since 2006. Therefore, Mr. Wroten
has failed to show that he has received treatment under this claim in the last five years, and his
request to reopen was properly denied.

        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: December 11, 2015

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




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