STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 22, 2013 

RORY L. PERRY II, CLERK 

WEST VIRGINIA OFFICE OF SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

INSURANCE COMMISSIONER 

Commissioner Below, Petitioner, 

vs.) No. 12-0307	 (BOR Appeal No. 2046185) 

(Claim No. 2005027687) 

OPAL A. BONECUTTER 

Claimant Below, Respondent, 

and 

MASON COUNTY BOARD OF EDUCATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner the West Virginia Office of Insurance Commissioner, by Gary Mazezka, its 

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

Opal A. Bonecutter, by Tanya Hunt Handley, her attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 2, 2012, in 

which the Board affirmed a June 30, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s October 12, 2010, 

decision denying Ms. Bonecutter’s request for chiropractic manipulation, and also reversed the 

claims administrator’s October 12, 2010, decision denying Ms. Bonecutter’s request to reopen 

her 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 

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Ms. Bonecutter injured her cervical spine and shoulder on January 5, 2005, while lifting 

boxes of frozen food. The claim was held compensable for displaced cervical intervertebral disc 

and sprain/strain of the shoulder/arm. On February 3, 2009, Ms. Bonecutter was moving boxes of 

frozen food when she began experiencing pain in her cervical spine and shoulder. A September 

11, 2009, cervical spine MRI revealed multilevel discogenic changes with cord compression at 

C5-6. On December 1, 2009, Ms. Bonecutter was evaluated by Dr. Weinsweig, who stated that 

after sustaining an initial injury in January of 2005, Ms. Bonecutter reinjured her cervical spine 

at work in February of 2009. In a February 18, 2010, deposition Dr. Bitner, Ms. Bonecutter’s 

chiropractor, stated that Ms. Bonecutter’s symptoms that began in 2009 are an exacerbation of 

the injury she sustained in 2005. On October 12, 2010, the claims administrator denied Ms. 

Bonecutter’s request for authorization for chiropractic manipulation and also denied her request 

to reopen the claim for further consideration of temporary total disability benefits. 

In its Order reversing the October 12, 2010, claims administrator’s decisions, the Office 

of Judges authorized chiropractic manipulation and reopened the claim for further consideration 

of temporary total disability benefits based on a finding that Ms. Bonecutter sustained an 

aggravation of her January 5, 2005, injury. The West Virginia Office of Insurance Commissioner 

disputes this finding and asserts that Ms. Bonecutter is not entitled to authorization for 

chiropractic manipulation because she sustained a new injury on February 3, 2009. The West 

Virginia Office of Insurance Commissioner further asserts that Ms. Bonecutter is not entitled to a 

reopening of the claim for further consideration of temporary total disability benefits because she 

sustained a new injury on February 3, 2009, and because she has exceeded the statutorily 

permitted number of claim reopening applications. 

In Harper v. State Workmen’s Compensation Commissioner, 160 W.Va. 364, 234 S.E.2d 

779 (1977), this Court held: “For purposes of obtaining a reopening . . . , the claimant must show 

a prima facie cause, which means nothing more than any evidence which would tend to justify, 

but not to compel the inference that there has been a progression or aggravation of the former 

injury.” The Office of Judges found that the evidence of record demonstrates that Ms. 

Bonecutter’s February 3, 2009, re-injury is an aggravation of the January 5, 2005, injury. The 

Office of Judges relied on the opinion of Dr. Bitner, and found that she vigorously argued in her 

deposition that Ms. Bonecutter sustained an aggravation of the January 5, 2005, injury as 

opposed to a new injury. Further, the Office of Judges found that Ms. Bonecutter’s application 

for temporary total disability benefits is not barred by West Virginia Code § 23-4-16(a)(2) 

(2005) because, contrary to the West Virginia Office of Insurance Commissioner’s assertion, she 

did not exceed the statutory two-application limit for reopening requests. The Office of Judges 

found that of the three applications filed, only two request a reopening of the claim for temporary 

total disability benefits. The Board of Review reached the same reasoned conclusions in its 

decision of February 2, 2012. We agree with the reasoning and conclusions of the Board of 

Review. 

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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 22, 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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