                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
FRANCIS L. FLUHARTY JR.,                                                        September 30, 2016
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 15-0996 (BOR Appeal No. 2050205)
                    (Claim No. 2014004300)

AAA MOBILE HOMES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Francis L. Fluharty, Jr., by Jonathan C. Bowman, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. AAA Mobile Homes,
Inc., by its attorney, Lucinda Fluharty, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 2, 2015, in
which the Board affirmed the January 27, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 12, 2014,
closure of the claim for temporary total disability benefits and its September 15, 2014, denial of
Mr. Fluharty’s request to reopen the claim for temporary total disability benefits. 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. Fluharty was injured on August 6, 2013, when his foot became trapped under part of
an excavator. The injury resulted in Mr. Fluharty having his leg amputated above the knee. On
February 3, 2014, Patricia Bailey, Ph.D., LPC, NCC, evaluated Mr. Fluharty to assess his
cognitive and emotional functioning. She diagnosed him with post-traumatic stress syndrome
and depression. Jack S. Koay, M.D., evaluated Mr. Francis on May 2, 2014. He determined Mr.
Fluharty had reached maximum medical improvement and assessed 50% whole person
impairment for the amputation of the left leg at thigh level. On May 12, 2014, the claims
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administrator awarded Mr. Fluharty a 50% permanent partial disability award. The claims
administrator closed the claim for temporary total disability benefits on May 12, 2014, as well.

       Dr. Bailey started treating Mr. Fluharty for his psychological condition on June 26, 2011.
On August 28, 2014, Dr. Bailey completed an attending physician benefits form stating Mr.
Fluharty had not reached maximum medical improvement from a psychological standpoint and
was unable to return to work until at least December 31, 2014. Mr. Fluharty then requested his
claim be reopened for additional temporary total disability benefits. The claims administrator
denied the request to reopen the claim on September 15, 2014. Stuart S. Burstein, M.D.,
performed a psychiatric independent medical evaluation on October 29, 2014. He agreed that Mr.
Fluharty had post-traumatic stress disorder and depression. He also agreed Mr. Fluharty had not
reached maximum medical improvement. However, he believed Mr. Fluharty was able to work
and that it would be beneficial to him to do so.

        The Office of Judges affirmed the claims administrator’s closure of the claim for
temporary total disability benefits and the claims administrator’s denial of the request to reopen
the claim for temporary total disability benefits in its January 27, 2015, Order. The Office of
Judges found that Dr. Koay determined Mr. Fluharty had reached maximum medical
improvement from a physical standpoint on May 2, 2014. Dr. Burstein did not believe Mr.
Fluharty had reached maximum medical improvement from a psychiatric standpoint, but there
was nothing preventing him from returning to work. Additionally, the only opinion stating Mr.
Fluharty was not able to work was that of Dr. Bailey, a psychologist. The Office of Judges
determined the medical evidence submitted with the reopening application was not from the
treating physician, but from a treating psychologist. The Office of Judges determined that West
Virginia Code of State Rules §85-20-6.1 mandates that the treating physician be responsible for
coordinating health care and that the treating physician is specifically a medical doctor,
osteopath, podiatrist, or chiropractor. Since Dr. Bailey is not one of these, the Office of Judges
found the evidence did not support the reopening.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges. We agree with the reasoning of the Board of Review. The treating physician in this case
is C.J. Meyers, D.O. He completed a diagnosis update adding the psychological conditions on
July 17, 2014. Dr. Burstein determined Mr. Fluharty was not temporarily and totally disabled due
to the psychiatric issues. Mr. Fluharty also testified he was capable, psychologically, of working.
Therefore, the 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.

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ISSUED: September 30, 2016


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

DISSENTING:
Chief Justice Menis E. Ketchum




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