STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
FRANK D. TOATH, November 20, 2013
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 12-0274 (BOR Appeal No. 2046226)
(Claim No. 980058068)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
HEDRA Y. WHEATLEY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Frank D. Toath, by Steven M. Thorne, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Anna L. Faulkner, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated February 3, 2012, in
which the Board affirmed a July 27, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 13, 2011,
Order denying authorization for an exploration surgery on Mr. Toath’s right wrist. 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.
On May 18, 1998, Mr. Toath was working as a logger for Hedra Y. Wheatley, and
allegedly sustained injuries to his right shoulder, chest, and neck when a tree fell on him. The
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Office of Judges noted that the record contains no order or description of the compensable
components of Mr. Toath’s claim. On May 11, 2009, Mr. Toath filed an application to reopen his
workers’ compensation claim due to an aggravation or progression of the injuries to his right
shoulder, chest, and neck. Mr. Toath requested authorization for an exploration surgery on his
right wrist. On January 13, 2011, the claims administrator denied Mr. Toath’s request due to
insufficient evidence to justify the requested medical treatment.
The Office of Judges concluded that Mr. Toath was not entitled to authorization for an
exploration surgery on his right wrist in relation to the work injury on May 18, 1998. Mr. Toath
asserts that the requested medical treatment is medically related and reasonably required due to
his May 18, 1998, compensable injuries. The West Virginia Office of Insurance Commissioner
maintains that the record fails to articulate what treatment is being requested and how that
treatment would be reasonably required to treat Mr. Toath’s compensable injuries. Charleston
Area Medical Center’s records indicate that Mr. Toath had carpal tunnel surgery after a March
18, 1999, injury where a tree fell and injured his wrist. On June 4, 2008, an EMG and a nerve
conduction study by Dr. Derakhshan found evidence of bilateral carpal tunnel compression. Mr.
Toath is currently complaining of a painful hard knot at the site of the previous carpal tunnel
surgery along with paraesthesia and numbness. On July 10, 2009, Dr. Fathy reported that the
EMG and nerve conduction studies confirmed bilateral carpal tunnel compression and opined
that the scar over the right wrist should be explored.
The Office of Judges determined that the record contained no evidence of the diagnosis
that was held compensable in Mr. Toath’s claim and that there was no evidence explaining how
the requested treatment related to the original injury. The Office of Judges held there was
insufficient evidence to prove the requested medical treatment was medically related or
reasonably required to treat Mr. Toath’s compensable injuries. The Board of Review reached the
same reasoned conclusions in its decision of February 3, 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: November 20, 2013
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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