STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 30, 2013 

RORY L. PERRY II, CLERK 

FRANK A. BEKKERING, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0172	 (BOR Appeal No. 2046200) 

(Claim No. 2009082121) 

THE HOMER LAUGHLIN CHINA COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Frank A. Bekkering, by Christopher Wallace and Raymond Hinerman, his 

attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review. 

The Homer Laughlin China Company, by Lucinda Fluharty, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 31, 2012, in 

which the Board affirmed a July 22, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 15, 2011, 

decision denying Mr. Bekkering’s request to add major depressive disorder, single episode as a 

compensable component of the claim. 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. Bekkering asserts that he developed major depressive disorder subsequent to the 

development of work-related carpal tunnel syndrome. On December 7, 2010, the claims 

administrator authorized a one-time psychiatric consultation with Dr. Nalluri following a request 

from Mr. Bekkering’s treating physician. Mr. Bekkering was examined by Dr. Nalluri on 

December 14, 2010, and was diagnosed with major depressive disorder resulting from workrelated carpal tunnel syndrome. On March 9, 2011, Dr. Nalluri submitted a diagnosis update 

form requesting that major depressive disorder, single episode be added as a compensable 

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component of the claim. The claims administrator denied the request to add major depressive 

disorder as a compensable component based on a finding that Dr. Nalluri is not the treating 

physician of record in the instant claim. 

In its Order affirming the March 15, 2011, claims administrator’s decision, the Office of 

Judges held that the request to add major depressive disorder as an additional compensable 

component was properly denied because the request was made by a psychiatrist who is not the 

treating physician of record. Mr. Bekkering disputes this finding and asserts that the evidence of 

record satisfies his required burden of proof, and that major depressive disorder should therefore 

be added as a compensable component of the claim. 

In making its determination, the Office of Judges relied on West Virginia Code of State 

Rules § 85-20-12.4 (2006) and § 85-20-12.4a (2006). West Virginia Code of State Rules § 85­

20-12.4 states in part: 

Services may be approved to treat psychiatric problems only if 

they are a direct result of a compensable injury. As a prerequisite 

to coverage, the treating physician of record must send the injured 

worker for a consultation with a psychiatrist who shall examine the 

injured worker to determine 1) if a psychiatric problem exists; 2) 

whether the problem is directly related to the compensable 

condition; and 3) if so, the specific facts, circumstances, and other 

authorities relied upon to determine the causal relationship. 

West Virginia Code of State Rules § 85-20-12.4a states that “[a] Diagnosis Update Form 

WC-214 must be attached to the treating physician’s report in order to request the psychiatric 

condition be added as an approved diagnosis.” The Office of Judges found that the Rules require 

that Diagnosis Updates be completed by a treating physician. Further, the Office of Judges found 

that West Virginia Code of State Rules § 85-20-6.6 (2006) assigns the responsibility of reporting 

a claimant’s most accurate and correct condition, as well as changes in his diagnosis, to the 

treating physician. Finally, the Office of Judges found that because Dr. Nalluri is not the treating 

physician of record, the claims administrator’s denial of the addition of major depressive 

disorder as a compensable component is in accordance with the Rules. The Board of Review 

reached the same reasoned conclusions in its decision of January 31, 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: October 30, 2013 

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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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