STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

JOHN M. SZOKE II, September 12, 2013 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 11-1741 (BOR Appeal No. 2046081) 

(Claim No. 990037649) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

GAIL ENTERPRISES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner John M. Szoke II, by John H. Shumate Jr., his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of 

Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 8, 2011, in 

which the Board affirmed a June 13, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 9, 2011, 

decision denying a request for medical 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is 

appropriate for a memorandum decision rather than an opinion. 

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Mr. Szoke was injured while working for Gail Enterprises on October 28, 1998. The 

claim was subsequently held compensable for the following conditions: sprain/strain thoracic 

region; sprain/strain lumbosacral; displaced cervical intervertebral disc; adjustment reaction; 

dislocation thoracic vertebrae; and sprain/strain of the neck. Mr. Szoke has suffered continuing 

complaints relating to these conditions. On February 9, 2011, the claims administrator denied a 

request for continued maintenance treatment by Dr. Kropac for nonspecific neck pain, and 

authorization for the medications Zanax, Lortab, and Nuerontin. The Office of Judges affirmed 

the claims administrator’s Order, relying on Dr. Mukkamala’s March 16, 2010, independent 

medical evaluation. 

The Office of Judges held that the requested medical benefits were not reasonably 

required medical treatment for the compensable injury of October 28, 1998. It relied heavily on 

the report of Dr. Mukkamala to arrive at this conclusion. The Board of Review reached the same 

reasoned conclusions. On appeal, Mr. Szoke argues that the preponderance of the evidence 

clearly supports a finding that the treatment is reasonably required and medically related to the 

compensable injury. The West Virginia Office of Insurance Commissioner maintains that Mr. 

Szoke’s current problems are not related to the compensable injury but are related to the 

degenerative changes shown on a 2010 MRI. Treatment records from Dr. Kropac document that 

Mr. Szoke has continuing complaints in the neck and lower back, with radiation of pain, 

numbness, and tingling. On March 16, 2010, Dr. Mukkamala performed an independent medical 

evaluation and found that the compensable injury was only a soft tissue injury, despite the claim 

being compensable for other conditions. Dr. Mukkamala concluded that the current pain is 

nonspecific pain with no causal relationship with the soft tissue injury of October 28, 1998, and 

that no further treatment is necessary. In correspondence from Dr. Kropac, he states he disagrees 

with Dr. Mukkamala’s conclusions, noting that Mr. Szoke has a cervical disc herniation at two 

levels as a result of the compensable injury, and will need ongoing care with regard to his neck 

and lower back. In a March 7, 2011, treatment note, Dr. Kropac stated that the requested 

medications allow Mr. Szoke to lead a more functional life existence than otherwise possible 

given the restrictions and limitations resulting from the compensable injury. 

We disagree with the findings of the Board of Review. The preponderance of the 

evidence establishes that Mr. Szoke sustained more than a soft tissue injury on October 28, 1998. 

The record demonstrates that despite treatment, he suffers from continued complaints with his 

neck and lower back. The Office of Judges relied on Dr. Mukkamala’s evaluation to find that the 

current complaints are not related to the compensable injury. However, Dr. Mukkamala’s report 

is flawed as he bases his opinion on a finding that the compensable injury was a mere soft tissue 

injury, despite the record demonstrating otherwise. Dr. Kropac’s treatment records and 

correspondence establish that Mr. Szoke suffers from a cervical disc herniation at two levels and 

continued lower back pain with radiation. We find that Mr. Szoke is entitled to the requested 

maintenance treatment by Dr. Kropac through office visits and the medications Zanax, Lortab, 

and Neurontin. 

For the foregoing reasons, we find that the decision of the Board of Review is based upon 

a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision 

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of the Board of Review is reversed and remanded with instructions to grant the requested 

medical benefits. 

Reversed and Remanded. 

ISSUED: September 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

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