STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

May 14, 2013
 

RORY L. PERRY II, CLERK
 

LEON J. ZACKOWSKI, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0983	 (BOR Appeal No. 2045411) 

(Claim No. 2006024400) 

DODRILL HEATING AND COOLING, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Leon J. Zackowski, by Patrick K. Maroney, his attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Dodrill Heating and Cooling, 

LLC, by Marion E. Ray, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated June 3, 2011, in which 

the Board affirmed a November 22, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 11, 2010, 

denial of authorization for hyalgan injections as not related to a compensable component of Mr. 

Zackowski’s injury. 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. Zackowski was tearing down a retaining wall in the employment of Dodrill Heating 

and Cooling, LLC on January 12, 2006, when a large block from the wall fell on him, injuring 

his right knee. The injury was held compensable and his received surgery to repair the injury. 

But the claimant has since had consistent pain in his right knee and the knee frequently gives out. 

Mr. Zackowski requested authorizations to receive hyalgan injections to reduce the swelling in 

his knee. The claims administrator denied authorization for additional treatment on May 11, 

2010, leading to this appeal. 

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Under West Virginia Code § 23-4-3(a)(1) (2005), the claims administrator is required to 

provide reasonably required medical services and treatments related to an employee’s 

compensable injury. In this case, the Office of Judges found that Mr. Zackowski did not meet his 

burden of proving that the requested treatments were medically and reasonably related to his 

compensable injury. The only evidence Mr. Zackowski puts forward of his current condition is 

the February 5, 2010, report from Scott Orthopedic Center, Inc. Although the report 

demonstrates Mr. Zackowski’s need for hyalgan injections, it does not demonstrate that his need 

is related to his compensable injury. Since Mr. Zackowski did not present any evidence to 

demonstrate the link between the treatments and his compensable injury, the Office of Judges 

could not reverse the decision of the claims administrator. The Office of Judges found that Mr. 

Zackowski had a degenerative condition, chondromalacia of the patella, which more likely 

resulted from pre-existing and non-work-related injuries than his compensable injury. 

The Board of Review adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the findings and reasoning of the Office of Judges. Mr. Zackowski did not 

meet his burden of proving that the requested treatments were medically and reasonably related 

to his compensable injuries. The Board of Review was correct in affirming the Order of the 

Office of Judges. 

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: May 14, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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