Richard A. Carper v. W. Va. Office of Insurance Commissioner/Sycamore Creek Industries

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS August 13, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
RICHARD A. CARPER, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0490 (BOR Appeal No. 2047945)
(Claim No. 2002044959)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

SYCAMORE CREEK INDUSTRIES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Richard A. Carper, by Steven Thorne, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated April 24, 2013, in
which the Board affirmed a November 16, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 5, 2012,
decision denying Mr. Carper’s request for authorization of the medications Percocet and
Diclofenac. 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.

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 Mr. Carper was injured on January 21, 2002, when he hit a pothole in the course of his
employment as a truck driver, and the claim was held compensable for a cervical sprain/strain.
Mr. Carper received pain management care from David Caraway, M.D., who noted that a
cervical spine MRI revealed degenerative changes and herniated nucleus pulposi at C3-4, C4-5,
and C6-7. He diagnosed Mr. Carper with a cervical sprain and brachial radiculitis, and treated
him with Percocet and Diclofenac, among other medications. On February 22, 2011, Jerry Scott,
M.D., performed an independent medical evaluation and found that Mr. Carper’s current
complaints are typical of those reflecting a degenerative condition. He further found that Mr.
Carper’s current treatment regimen appears generally directed at alleviating the symptoms
associated with underlying degenerative changes. On January 5, 2012, the claims administrator
denied Mr. Carper’s request for authorization of the medications Percocet and Diclofenac.

In its Order affirming the claims administrator’s decision, the Office of Judges held that a
preponderance of the evidence fails to demonstrate that the requested medications are medically
necessary and reasonably required to treat the compensable injury. Mr. Carper disputes this
finding and asserts that the evidence of record demonstrates that the requested medications are
necessary for the treatment of his compensable injury.

The Office of Judges found that authorization for the requested medications was
previously denied by the claims administrator on June 28, 2011, based on Dr. Scott’s
independent medical evaluation. The Office of Judges further found that it affirmed the claims
administrator’s June 28, 2011, decision in an Order dated December 12, 2011. The Board of
Review affirmed the December 12, 2011, Order of the Office of Judges on July 12, 2012, and
this Court affirmed the Board of Review’s July 12, 2012, Order on March 18, 2014.

The Office of Judges found that its prior December 12, 2011, denial of authorization for
Percocet and Diclofenac forms the basis for its denial of authorization for the requested
medications in the instant appeal. The Office of Judges noted that in the instant appeal, Mr.
Carper has merely provided additional treatment notes from Dr. Caraway. However, the Office
of Judges found that these treatment notes contain no additional information that sets the instant
request for authorization of Percocet and Dicolfenac apart from the request for authorization of
these medications that was previously denied. Further, the Office of Judges found that Dr.
Caraway’s treatment notes provide no information as to why the use of the requested
medications would now be justified in the treatment of the compensable injury. Finally, as in its
prior decision, the Office of Judges relied on Dr. Scott’s finding that Mr. Carper’s current
complaints arise from degenerative changes and not from the compensable injury. The Board of
Review reached the same reasoned conclusions in its decision of April 24, 2013. 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.

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 Affirmed.

ISSUED: August 13, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum

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