STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 20, 2013 

RORY L. PERRY II, CLERK 

FRANK D. TOATH, 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-0274 (BOR Appeal No. 2046226) 

(Claim No. 980058068) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

HEDRA Y. WHEATLEY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Frank D. Toath, by Steven M. Thorne, his attorney, appeals the decision of the 

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

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

This appeal arises from the Board of Review’s Final Order dated February 3, 2012, in 

which the Board affirmed a July 27, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 13, 2011, 

Order denying authorization for an exploration surgery on Mr. Toath’s right wrist. 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. 

On May 18, 1998, Mr. Toath was working as a logger for Hedra Y. Wheatley, and 

allegedly sustained injuries to his right shoulder, chest, and neck when a tree fell on him. The 

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Office of Judges noted that the record contains no order or description of the compensable 

components of Mr. Toath’s claim. On May 11, 2009, Mr. Toath filed an application to reopen his 

workers’ compensation claim due to an aggravation or progression of the injuries to his right 

shoulder, chest, and neck. Mr. Toath requested authorization for an exploration surgery on his 

right wrist. On January 13, 2011, the claims administrator denied Mr. Toath’s request due to 

insufficient evidence to justify the requested medical treatment. 

The Office of Judges concluded that Mr. Toath was not entitled to authorization for an 

exploration surgery on his right wrist in relation to the work injury on May 18, 1998. Mr. Toath 

asserts that the requested medical treatment is medically related and reasonably required due to 

his May 18, 1998, compensable injuries. The West Virginia Office of Insurance Commissioner 

maintains that the record fails to articulate what treatment is being requested and how that 

treatment would be reasonably required to treat Mr. Toath’s compensable injuries. Charleston 

Area Medical Center’s records indicate that Mr. Toath had carpal tunnel surgery after a March 

18, 1999, injury where a tree fell and injured his wrist. On June 4, 2008, an EMG and a nerve 

conduction study by Dr. Derakhshan found evidence of bilateral carpal tunnel compression. Mr. 

Toath is currently complaining of a painful hard knot at the site of the previous carpal tunnel 

surgery along with paraesthesia and numbness. On July 10, 2009, Dr. Fathy reported that the 

EMG and nerve conduction studies confirmed bilateral carpal tunnel compression and opined 

that the scar over the right wrist should be explored. 

The Office of Judges determined that the record contained no evidence of the diagnosis 

that was held compensable in Mr. Toath’s claim and that there was no evidence explaining how 

the requested treatment related to the original injury. The Office of Judges held there was 

insufficient evidence to prove the requested medical treatment was medically related or 

reasonably required to treat Mr. Toath’s compensable injuries. The Board of Review reached the 

same reasoned conclusions in its decision of February 3, 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: November 20, 2013 

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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