Appeal No. 2050925, Claim No. 910020791
Gary Lee Prater, pro se, appeals the decision of the West
Virginia Workers' Compensation Board of Review. The West
Virginia Office of the Insurance Commissioner, by Brandolyn
N. Felton-Ernest, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated March 29, 2016, in which the Board affirmed, in part,
and reversed, in part, an October 28, 2015, Order of the
Workers' Compensation Office of Judges. In its Order, the
Office of Judges affirmed, in part, and reversed, in part,
the claims administrator's March 27, 2015, decisions
which denied authorization of the medications Hydrocodone,
Fioricet, and Zoloft. The Court has carefully reviewed the
records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
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
Prater, a coal miner, was injured in the course of his
employment on June 13, 1991, when a piece of slate fell on
him. Diane Shaffer, M.D., completed the physician's
section of the report of occupational injury and listed the
injuries as head trauma, acute cervical sprain, and acute
lumbar sprain. A lumbar MRI taken in April of 1999 showed
mild degenerative changes in the lumbar spine. There were
mild disc bulges at L3-4 and L4-5. At L4-5 there was also a
mild left foraminal disc protrusion. A moderate bulging disc
with a small protrusion was seen at L5-S1.
November 3, 2000, David Jenkinson, M.D., performed an
independent medical evaluation in which Mr. Prater sustained
fractured teeth, a lacerated forehead, and injuries to his
knee, cervical spine, and lumbar spine as a result of the
compensable injury. He subsequently underwent two left knee
surgeries. At the time of evaluation, Mr. Prater reported
pain on the left side of his neck, the medial aspect of his
knee, and the lumbar spine. On examination, he had tenderness
in the cervical spine but full range of motion. The lumbar
spine and left knee had full range of motion with no pain
complaints. Dr. Jenkinson diagnosed minor cervical strain,
status post left knee medial menisectomy, and minor low back
strain. He assessed 5% impairment for the cervical spine and
1% for the left knee for a total of 6% whole person
August 14, 2003, the claims administrator authorized the
medications Ranitidine, Zoloft, Butalbital, Alprazolam, and
Hydrocodone. A treatment note by Ronald Mann, M.D., dated
August 18, 2014, indicates Mr. Prater continued to have back
pain and tenderness. He diagnosed neck and back pain. Mr.
Prater underwent a drug screen which was positive for
opioids. On November 17, 2014, Dr. Mann stated in a treatment
note that Mr. Prater had neck and back pain that was
essentially stable and unchanged. He noted that he requires
the prescribed medications for functionality. Mr. Prater
again underwent a drug screen which was positive for opioids.
On March 11, 2015, Mr. Prater again underwent a urine drug
screen which was negative for all tested medications. Dr.
Mann recommended he take his medication as prescribed. On
March 24, 2015, Dr. Mann wrote a letter to the claims
administrator stating that Mr. Prater was prescribed
Hydrocodone, Nexium, Neurontin, Zoloft, Celebrex, and
Fioricet due solely to the compensable injury.
March 27, 2015, the claims administrator denied an
authorization request for Hydrocodone. It noted that Mr.
Prater tested negative for the medication on March 11, 2015.
That same day, the claims administrator also denied an
authorization request for Fioricet. It stated that the
medication is a barbiturate and Mr. Prater tested negative
for it on February 11, 2015; November 17, 2014; and August
18, 2014, indicating the drug was not in his system. The
claims administrator noted that Fioricet treats Mr. Prater
for muscle contraction headaches, a non-compensable
condition. In a final March 27, 2015, decision, the claims
administrator denied an authorization request for Zoloft. It
found that the medication was to treat anxiety and sleep
difficulties, neither of which are compensable conditions.
Mann wrote a letter in June of 2015 stating that he has
treated Mr. Prater for the work-related injury since
September of 1999. He suffers from back pain and muscle
spasms daily. His current medications allow him to function
but he has difficulty obtaining them through workers'
compensation. He continues to require the medication for his
daily living. In a second letter dated July 8, 2015, Dr. Mann
stated that Mr. Prater continued to take Hydrocodone, Nexium,
Neurontin, Zoloft, Celebrex, and Fioricet. He asserted that
the medications are required solely due to the compensable
injury, and he will continue to require the medications long
term as his injuries will progress with time.
Office of Judges reversed the claims administrator's
decisions denying Hydrocodone and Fioricet on October 28,
2015. It found that Mr. Prater showed by a preponderance of
the evidence that the medications are necessary to treat his
compensable injury. Dr. Mann wrote a letter stating that
Hydrocodone and Fioricet were prescribed solely to treat the
work-related injury. He said they are necessary for chronic
pain, quality of life, and functionality. Dr. Mann even
identified the instant claim as the basis of his request. The
West Virginia Office of the Insurance Commissioner argued
before the Office of Judges that Mr. Prater failed urine drug
screens because he did not have opiates or barbiturates in
his system when he was tested. The Office of Judges
determined that he did not fail a drug test and that Dr. Mann
never stated that he failed to comply with his medication
regimen. The Office of Judges stated that Dr. Mann is aware
of Mr. Prater's medications and would be obliged to take
action if he believed they were being abused. Finally, the
Office of Judges found that the West Virginia Office of the
Insurance Commissioner failed to submit any medication
evidence supporting its argument that the medications would
treat unrelated degenerative conditions. In its Order, the
Office of Judges also affirmed the claims administrator's
denial of the medication Zoloft. The Office of Judges found
that the medication was properly denied because there is no
evidence the claim is compensable for a psychiatric
condition. Dr. Mann's letters indicate that Zoloft is
used to treat anxiety and sleep problems, which are unrelated
to the compensable injury.
Board of Review affirmed the Office of Judges' Order
insofar as it denied the medication Zoloft. The Board of
Review reversed the Office of Judges insofar as it authorized
the medications Hydrocodone and Fioricet. The Board of Review
found that per West Virginia Code of State Rules §
85-20-53 and § 85-20-54-62 (2006) specific documentation
is required when controlled substances are prescribed beyond
the time limit periods set out after the initial injury. As
Mr. Prater was injured in 1991, this documentation is
required. Dr. Mann's reports failed to provide the
necessary documentation for authorization of Hydrocodone.
Regarding Fioricet, Dr. Mann stated on March 24, 2015, and
July 8, 2015, that the medication was to treat muscle
contraction headaches, a non-compensable condition.
review, we agree with the reasoning and conclusions of the
Board of Review. As Hydrocodone is a controlled substance,
the requirements of West Virginia Code of State Rules §
85-20-53 apply in this case and proper documentation of the
necessity of exceeding the time limits was not provided.
Additionally, the medications Fioricet and Zoloft are for the
treatment of a non-compensable condition.
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 ...