STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
GEORGE F. BUTCHER, FILED
Claimant Below, Petitioner November 6, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0784 (BOR Appeal No. 2054125) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(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 Counsel Patrick K. Maroney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). West Virginia
Office of the Insurance Commissioner, by Counsel Melissa M. Strickler, filed a timely response.
The issue on appeal is medical benefits. The claims administrator denied a request for
physical therapy on August 21, 2018. The Workers’ Compensation Office of Judges (“Office of
Judges”) affirmed the decision in its March 15, 2019, Order. The Order was affirmed by the Board
of Review on August 14, 2019.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Butcher, an iron worker, was injured in the course of his employment on October 3,
1979, when he fell. The fall resulted in an injury to his back and the amputation of his left leg
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below the knee. On May 11, 2018, the claims administrator authorized a bilateral lower extremity
EMG. The claims administrator denied a request for physical therapy on August 21, 2018.
Mr. Butcher testified in a deposition on November 29, 2018, that he was injured at work in
1979 when he fell. He had to have his left leg amputated below the knee, and he also injured his
back in the fall. He testified that his doctor requested physical therapy for his back because walking
with a cane was causing discomfort in his spine. Mr. Butcher stated that an EMG was authorized
but he did not have the study performed. He asserted that he received a letter stating that the EMG
was denied.
The Office of Judges affirmed the claims administrator’s denial of physical therapy in its
March 15, 2019, Order. It noted that the requested EMG was never performed. Mr. Butcher
testified that he was told the EMG was denied. The Office of Judges found that by May 11, 2018,
Order, the claims administrator approved the EMG. The Office of Judges further found that Mr.
Butcher submitted no medical evidence, including the request for physical therapy. Mr. Butcher
admitted in his testimony that not everything related to his right knee was held compensable. The
Office of Judges found that the claims administrator must provide medically related and reasonably
required medical treatment for compensable injuries. Given that Mr. Butcher submitted no medical
evidence, the Office of Judges concluded that the requested treatment could not be related to a
compensable injury. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on August 14, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. In order for medical treatment to be authorized, it must be
required to treat a compensable injury. Mr. Butcher submitted no medical evidence. It is therefore
impossible to determine if the requested treatment is related to a compensable injury. Mr. Butcher
has failed to meet his burden of proof.
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: November 6, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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