Andrea Kohler v. ETVCIVC Holdings, LLC

FILED
January 19, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
ANDREA KOHLER,
Claimant Below, Petitioner
vs.) No. 21-0489 (BOR Appeal No. 2056536)
(Claim No. 2021002738)
ETCIVC HOLDINGS, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Andrea Kohler, a self-represented litigant, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). ETCIVC Holdings,
LLC, by Counsel James W. Heslep, filed a timely response.
The issue on appeal is medical benefits. The claims administrator denied a request for
outpatient surgery on November 13, 2020. The Workers’ Compensation Office of Judges (“Office
of Judges”) affirmed the decision in its March 9, 2021, Order. The Order was affirmed by the
Board of Review on March 26, 2021.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under West Virginia Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
(d) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the Office of Judges that was entered on the same issue
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in the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of constitutional
or statutory provision, is clearly the result of erroneous conclusions of law, or is
based upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo
reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Ms. Kohler, a truck driver, was injured in the course of her employment. On November
13, 2020, the claims administrator denied a request for outpatient surgery. The Office of Judges
notified Ms. Kohler on February 10, 2021, that it had not received any evidence in support of Ms.
Kohler’s protest of the November 13, 2020, claims administrator decision, nor had it received an
explanation of the basis of the appeal. The Office of Judges informed Ms. Kohler that she had
fifteen days to notify the Office of Judges and report any error in the identification of the record.
Ms. Kohler did not respond to the Office of Judges’ letter, nor did she provide any evidence in
support of her protest.
In its March 9, 2021, Order, the Office of Judges affirmed the claims administrator’s denial
of authorization for an outpatient surgery. The Office of Judges stated that Ms. Kohler was given
a time-frame in which to submit evidence in support of her protest. Ms. Kohler failed to submit
any evidence or explanation of the basis for the protest. The Office of Judges then issued a letter
explaining that it had not received any evidence and gave Ms. Kohler fifteen days to respond,
which Ms. Kohler failed to do. West Virginia Code of State Rules 93-1-10.4, promulgated by the
Office of Judges pursuant to West Virginia Code § 23-5-9, provides that
if the protesting party fails to show that evidence or argument has been timely filed,
or if there is no response to the Show Cause Order, the Office of Judges shall issue
a decision affirming the claims administrator’s order. Such decision issued pursuant
to this rule may be appealed to the Workers’ Compensation Board of Review.
None of the required documentation was provided in this case, and therefore, the claims
administrator’s denial of treatment was affirmed.
The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on March 26, 2021. The Board found that this Court addressed a
similar factual situation in NE Operations Holdings v. Satterfield, No. 13-0169, 2014 WL 2978382(W. Va. July 2, 2014) (memorandum decision). In that case, this Court held that the Office of
Judges, and by extension Board of Review, were mandated to reject the claimant’s protest because
he failed to provide evidence in support of his case and failed to comply with a Show Cause Order.
Similarly, here the Board of Review concluded that the Office of Judges in the case at issue was
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correct to affirm the claims administrator’s denial of Ms. Kohler’s request for medical treatment
because she failed to provide any evidence in support of her protest.
After review, we agree with the reasoning and conclusions of the Board of Review. West
Virginia Code of State Rules § 93-1-10.4 states that when a claimant fails to provide evidence in
support of his or her claim, the Office of Judges shall affirm the claims administrator’s decision.
In this case, Ms. Kohler provided no evidence to the Office of Judges in support of her protest.
Neither the Office of Judges nor Board of Review erred in affirming the claims administrator’s
denial of authorization for outpatient surgery.
Affirmed.
ISSUED: January 19, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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