                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 24, 2017
GEORGE F. BUTCHER,                                                             RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-1021 (BOR Appeal No. 2051271)
                   (Claim No. 800025170)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

A C DELLOVADE, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner George F. Butcher, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. West Virginia Office of the
Insurance Commissioner, by Noah A. Barnes, its attorney, filed a timely response.

        The issue on appeal is whether additional medical benefits should be authorized in the
claim. This appeal originated from the March 20, 2015, and March 31, 2015, claims
administrator’s decisions denying the request for a stair lift and scooter, and denying the request
for a men’s depth inlay shoe and an ankle foot orthosis spiral prefabricated brace, respectively.
In its April 11, 2016, Order, the Workers’ Compensation Office of Judges affirmed the decisions.
The Board of Review’s Final Order dated September 29, 2016, affirmed the Order of the Office
of Judges. 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       George F. Butcher, an ironworker, was injured in the course of his employment on
October 3, 1979, when he fell forty feet and landed on his two feet which crushed the ankle joint
and broke the upper tibia of his leg, crushed both wrists, and compressed some vertebrae in his
lower back. His left leg had to be amputated below the knee one year later after an unsuccessful
bone fusion.

       Mr. Butcher began seeing Suzann Weathers, M.D., for treatment regarding his
compensable injury. On October 27, 2014, Dr. Weathers authored a statement indicating that Mr.
Butcher had a prosthesis and would benefit from a scooter and a stair lift. She opined that these
items were medically necessary and officially requested that they be authorized on February 18,
2015. On February 24, 2015, the claims administrator notified Mr. Butcher that there was not
enough medical evidence submitted to support the request for a stair lift and scooter. The claims
administrator requested that additional information be sent.

        On March 11, 2015, Dr. Weathers authored another statement and indicated that there
was medical necessity for a men’s depth inlay shoe and an ankle foot orthosis spiral
prefabricated brace due to right foot drop/ankle instability secondary to total knee replacement.1
On March 18, 2015, the claims administrator notified Mr. Butcher that there was not enough
medical evidence submitted to support the request for a men’s depth inlay shoe and an ankle foot
orthosis spiral prefabricated brace. Additional information was requested.

       The claims administrator denied the request for a stair lift and scooter on March 20, 2015.
The claims administrator stated that no medical evidence was submitted after its request for
additional information on February 24, 2015. Similarly, the claims administrator denied the
request for a men’s depth inlay shoe and an ankle foot orthosis spiral prefabricated brace on
March 31, 2015, because there was not enough medical evidence to support the request and no
additional information was submitted.

         On July 14, 2015, Mr. Butcher testified in a deposition that that he wears a prosthesis
which gives him trouble walking up and down stairs because of neuromas and phantom pain.
This also affects his balance. Putting one foot down at a time is very painful and he has fallen
down the stairs a few times. Mr. Butcher testified that he goes up or down the stairs one at a time
by sitting and lifting himself. He stated that three separate companies were authorized to visit his
home for measurements on the steps and provide estimates. Mr. Butcher also testified that his
doctor requested a scooter to help him get around as his walker slowed him down in trying to
keep up with his wife. Mr. Butcher has a hard time gripping the handles of the walker because of
arthritis that developed in his fingers after he broke both wrists in the compensable injury. Mr.
Butcher has difficulty walking due to the neuroma and phantom pain. He wears five ply socks

1
  Mr. Butcher underwent a total knee replacement of his right knee in 2005, which was paid for by his health
insurance company. The Office of Judges determined that the right knee/leg was not a compensable component of
the claim on March 14, 2013.
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because with each step, his stump goes further into the prosthesis. Mr. Butcher testified that the
shoe inlays fit tight around the prosthesis and that both shoes contain inlays. If only one shoe
were to have an inlay, his balance would be off. Mr. Butcher sees Dr. Weathers about every three
months for treatment of the blisters and neuromas on his stump.

         On April 11, 2016, the Office of Judges issued its Order and stated that the compensable
conditions of the claim were not submitted into evidence. Dr. Weathers requested the scooter,
stair lift, men’s depth inlay shoe, and an ankle foot orthosis spiral prefabricated brace, stating
they were medically necessary, but did not provide a rationale of how the diagnoses relate to the
requested equipment. Regarding Dr. Weathers’s request for the men’s depth inlay shoe and ankle
foot orthosis spiral prefabricated brace, the Office of Judges noted that the reports submitted
suggest that these pieces of equipment are for Mr. Butcher’s right foot drop/ankle instability
secondary to total knee replacement. The right leg/knee is not a compensable component of the
claim and thus the Office of Judges determined that the claims administrator’s denial of the inlay
shoe and ankle foot orthosis brace were affirmed. Regarding the stair lift and scooter, the Office
of Judges found that there was insufficient information on which to authorize the equipment. The
claims administrator requested additional information concerning the request for a stair lift and a
scooter but the information was never supplied and thus the request was denied. The Office of
Judges affirmed the denial of the stair lift and the scooter. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
September 29, 2016.

       We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. Mr. Butcher has not met his burden. The claims administrator requested
additional information on two different occasions and Mr. Butcher failed to supply any
additional medical evidence supporting his claim. The evidence of record is not sufficient to
show how the requested medical benefits are related to Mr. Butcher’s compensable injury.

        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: August 24, 2017


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




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