STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 14, 2014 

RORY L. PERRY II, CLERK 

FRANK A. BEKKERING, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0153	 (BOR Appeal No. 2048743) 

(Claim No. 2009082121) 

HOMER LAUGHLIN CHINA COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Frank A. Bekkering, by Frank Haas, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. 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 23, 2014, in 

which the Board affirmed an August 21, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 29, 2013, 

decision denying Mr. Bekkering’s request to reopen his claim for further consideration of 

temporary total disability 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 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 developed bilateral carpal tunnel syndrome in the course of his 

employment as a packer with Homer Laughlin China Company in March of 2009, and 

underwent bilateral carpal tunnel releases during the summer of 2010. Charles Werntz, D.O., 

performed an independent medical evaluation on November 21, 2011. He noted that Mr. 

Bekkering continues to have symptoms in the left hand but opined that Mr. Bekkering has 

reached maximum medical improvement because he has declined to obtain a second surgical 

consultation and has also declined to participate in physical therapy. On November 14, 2012, 

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Erin Saniga, M.Ed., C.R.C., L.P.C., authored a vocational rehabilitation closure report indicating 

that Mr. Bekkering’s file had been closed because he declined to participate in a vocational 

rehabilitation program. 

On May 14, 2013, Vern Orlang, M.D., completed an application to reopen Mr. 

Bekkering’s claim for further consideration of temporary total disability benefits. Dr. Orlang 

stated that Mr. Bekkering continues to experience pain in the left hand and wrist, and further 

stated that Mr. Bekkering sustained an aggravation or progression of his compensable injury 

because he experienced a worsening of his symptoms following the left carpal tunnel release. Dr. 

Orlang indicated that an examination performed on March 16, 2009, forms the basis for his 

request to reopen the claim and stated that Mr. Bekkering has been temporarily and totally 

disabled from March 16, 2009, through the present. 

On May 29, 2013, the claims administrator denied Mr. Bekkering’s request to reopen his 

claim. In its Order affirming the claims administrator’s decision, the Office of Judges held that 

Mr. Bekkering has failed to establish that he sustained an aggravation or progression of the 

compensable condition, or that some other fact or facts exist which were not previously 

considered and would entitle him to the receipt of temporary total disability benefits. The Board 

of Review affirmed the conclusions of the Office of Judges in its decision of January 23, 2014. 

West Virginia Code § 23-4-7a (2005) states that temporary total disability benefits are 

not payable after a claimant has reached maximum medical improvement, is released to return to 

work, or actually returns to work, whichever occurs first. On November 29, 2011, Dr. Werntz 

found that Mr. Bekkering had reached maximum medical improvement. Therefore, pursuant to 

West Virginia Code § 23-4-7a, Mr. Bekkering’s eligibility for temporary total disability benefits 

terminated upon Dr. Werntz’s finding that he had reached maximum medical improvement. West 

Virginia Code § 23-5-2 (2005) and § 23-5-3 (2009) provide that in order to be eligible for a 

reopening of the claim, Mr. Bekkering must demonstrate that a progression or aggravation of the 

compensable condition has occurred or, in the alternative, that a fact or facts not previously 

considered and which would entitle him to greater benefits than those already received exist. As 

noted by the Office of Judges, the reopening application was based upon a four-year-old medical 

report and failed to state any new findings not discussed in Dr. Werntz’s November 29, 2011, 

report. No other evidence supporting Mr. Bekkering’s request to reopen his claim has been 

submitted. 

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 14, 2014 

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CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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