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664 S.E.2d 776
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2008 Term
Employer Below, Petitioner
WEST VIRGINIA OFFICE INSURANCE COMMISSION
and ELMER ADKINS, JR.,
Claimants Below, Respondents
Appeal from the Workers' Compensation Board of Review
Claim No. 2004-009712
Board of Review No. 70812
Submitted: April 2, 2008
Filed: June 26, 2008
H. Toney Stroud
Thomas P. Maroney
Morgan Palmer Griffith
Edwin H. Pancake
Steptoe & Johnson PLLC Maroney, Williams, Weaver & Pancake
Charleston, West Virginia Charleston, West Virginia
Counsel for the Petitioner
Counsel for the Respondent
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. 'This Court will not reverse a finding of fact made by the Work[er's]
Compensation [Board of Review] unless it appears from the proof upon which the [Board
of Review] acted that the finding is plainly wrong. Syl. pt. 2, Jordan v. State Workmen's
, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner
, 152 W.Va. 359, 163 S.E.2d 605
(1968).' Syllabus, Rushman v. Lewis
, 173 W.Va. 149, 313 S.E.2d 426 (1984). Syl. Pt. 1, Conley v. Workers' Compensation Div
., 199 W.Va. 196, 483 S.E.2d 542 (1997).
2. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo
standard of review.
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L.
, 194 W.Va. 138, 459 S.E.2d 415 (1995).Per Curiam:
This is an appeal by SWVA, Inc. (hereinafter Appellant), from a decision of
the Workers' Compensation Board of Review (hereinafter BOR) which authorized digital
hearing aids for Mr. Elmer Adkins, Jr., a workers' compensation claimant employed by the
Appellant. The Appellant contends that the BOR ruling is plainly wrong in view of reliable
evidence and requests reversal by this Court. Specifically, the Appellant maintains that the
evidence fails to establish that digital hearing aids are reasonably required in the treatment
of Mr. Adkins. Subsequent to through review of the record, arguments of counsel, briefs,
and applicable precedent, this Court affirms the decision of the BOR.
I. Factual and Procedural History
Mr. Adkins filed a claim for hearing loss on May 29, 2003, reporting hearing
loss caused by exposure to noise in a steel production plant. Mr. Adkins' claim was held
compensable in September 2003, and authorization for standard binaural hearing aids was
granted. By letter dated October 9, 2003, Dr. Charles Abraham indicated that Mr. Adkins
would benefit from digital hearing aids due to the nature of his hearing loss.
On January 20, 2005, the Office of Judges denied authorization for digital
hearing aids, finding that Dr. Abraham had failed to adequately explain the basis for his
conclusion that standard hearing aids were insufficient to address Mr. Adkins' hearing loss.
On April 7, 2006, the BOR reversed that finding, reasoning that Dr. Abraham's explanation
had been sufficient to justify digital hearing aids and that the Office of Judges had
impermissibly substituted its judgment for that of the physician. On the basis of the BOR
ruling, digital hearing aids were authorized for Mr. Adkins.
On appeal to this Court, the Appellant employer asserts that the BOR erred in
granting authorization for digital hearing aids. The Appellant contends that even if digital
aids are generally superior to standard hearing aids, there is no requirement that a claimant
must be supplied with the best available technology. The salient question, the Appellant
argues, is medical justification.
II. Standard of Review
In syllabus point one of Conley v. Workers' Compensation Division, 199 W.Va.
196, 483 S.E.2d 542 (1997), this Court held that it will not reverse a finding of fact made
by the Work[ers'] Compensation [Board of Review] unless it appears from the proof upon
which the [Board of Review] acted that the finding is plainly wrong. (Citations omitted.)
This Court also explained as follows in Conley: Moreover, the plainly wrong standard of
review is a deferential one, which presumes an administrative tribunal's actions are valid as
long as the decision is supported by substantial evidence. Id. at 199, 483 S.E.2d at 545.
With regard to issues of law, this Court has consistently explained as follows: Where the
issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review. Syl. Pt. 1, Chrystal R.M.
v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Further, this Court observes the
legislature's abolishment of the rule of liberality in July 2003. See W.Va. Code § 23-4-1g
(2003) (providing for weighing of evidence based upon the preponderance of the evidence
as supportive of the chosen manner of resolution).
Pursuant to West Virginia Code § 23-4-3(a)(1) (1995) (Repl. Vol. 2002), in
effect at the time of the filing of this claim, the Workers' Compensation Commission is to
provide reasonably required medical treatment. In the present case, we encounter the
question of what type of hearing aid would be appropriate to treat the claimant's unique
hearing loss. The establishment of medical necessity for hearing aids was submitted in the
form of the October 9, 2003, letter from Dr. Abraham, as treating physician for Mr. Adkins.
Dr. Abraham specified that the claimant's hearing loss could most effectively be addressed
through the use of a digital hearing aid. Dr. Abraham explained that Mr. Adkins' lower
frequencies are essentially normal with a sloping sensorineural hearing loss in the mid
frequencies with upward slope in the higher frequencies. Dr. Abraham further stated that
[t]his odd configuration could best be fit with digital hearing aids.
In response, the Appellant contends that there is no evidence that a
conventional hearing aid would not suffice. Additionally, the Appellant asserts that the
unique configuration of Mr. Adkins' hearing loss was not exclusively induced by
occupational hearing loss and that at least a portion of the hearing loss is due to a non-
occupational component. Consequently, the Appellant asserts that digital hearing aids should
not be authorized to treat a hearing loss configuration which was not caused entirely by
noise-induced hearing loss suffered in the course of employment.
In evaluating the competing contentions, the BOR found that the only medical
evidence of record demonstrated the claimant should be authorized digital hearing aids based
upon his four frequency totals. The BOR concluded that Dr. Abraham's report is sufficient
evidence to demonstrate that the digital hearing aids are reasonably required.
As explained in Conley, this Court will not reverse a finding of the BOR unless
such finding is plainly wrong. Further, as Conley instructs, this Court must presume that the
BOR's actions are valid if supported by substantial evidence. 199 W.Va. at 199, 483 S.E.2d
at 545. Upon review of the uncontradicted medical opinion of Dr. Abraham, we find that the
evidence supports the conclusion of the BOR. (See footnote 1) We therefore affirm that decision.
The Appellant references West Virginia 85 CSR § 20-47 (2004) and
recognizes that such regulation does not apply to this case since Mr. Adkins filed his claim
and a compensability finding was entered prior to the effective date of the regulation.
Because the regulation is not properly before this Court, we express no judgment regarding