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Prater v. West Virginia Office of Insurance Commissioner

Supreme Court of West Virginia

August 2, 2017

GARY LEE PRATER, Claimant Below, Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and ALMA DEVELOPING, INC., Employer Below, Respondent

         BOR Appeal No. 2051183 (Claim No. 910020791)

          MEMORANDUM DECISION

         Petitioner Gary Lee Prater, pro se, appeals the decision of the West Virginia Workers' Compensation Board of Review. West Virginia Office of the Insurance Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response.

         The issue on appeal is whether appointments on July 6, 2015; August 10, 2015; September 9, 2015; and October 7, 2015; with Ronald Mann, M.D., should be authorized under the claim. The claims administrator denied the request for authorization for all the above listed dates by two separate Orders on September 18, 2015, and one Order on October 21, 2015. The Office of Judges reversed the claims administrator's decisions and approved all the appointments on March 10, 2016. The Board of Review reversed and reinstated the claims administrator's decisions on September 1, 2016. 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.

         Mr. Prater, a coal miner, for Alma Developing, Inc., was injured on June 13, 1991, in the course of his employment. Mr. Prater stated in his application that he was struck by a piece of slate. Diane Shaffer, M.D., completed the physician's section stating that Mr. Prater sustained an occupational injury to his teeth, neck, back, and head. Dr. Shaffer diagnosed a head trauma, acute cervical sprain, and acute lumbar sprain. On July 9, 1991, the claims administrator held the claim compensable.

         An April 6, 1999, lumbar MRI showed mild degenerative changes in the lumbar spine. There were mild disc bulges at L3-L4 and L4-L5. At the L4-L5 level there was also a mild left foraminal disc protrusion. A moderate bulging disc with a small central disc protrusion was also observed at L5-S1. On November 3, 2000, David Jenkinson, M.D., completed an independent medical evaluation. According to Dr. Jenkinson, Mr. Prater was at maximum medical improvement. An October 13, 2009, MRI of the cervical spine revealed minimal diffuse bulging of the discs at C4-5 and C6-7, a left paracentral C5-6 disc herniation with bilateral neural foraminal encroachment left greater than right, and no focal cervical spinal cord signal abnormality.

         On August 18, 2014, Ronald Mann, M.D., treated Mr. Prater for a follow-up. According to Dr. Mann, Mr. Prater continued to have back pain and tenderness. Dr. Mann diagnosed neck and back pain. Mr. Prater underwent a urine drug screen, which was positive for opiates. Dr. Mann stated Mr. Prater should continue with his medications as prescribed and return to the office in three months. Mr. Prater returned for a follow-up on November 17, 2014. Dr. Mann stated that Mr. Prater had neck and back pain that was essentially stable and has not changed from the visit of August. However Dr. Mann opined that he does require the medication for his functionality. Mr. Prater again underwent a urine drug screen, which was positive for opioids. Dr. Mann recommended Mr. Prater continue his medications as prescribed and return to the office in three months.

         On March 11, 2015, Mr. Prater returned to Dr. Mann. Dr. Mann diagnosed stable back pain. Mr. Prater again underwent a urine drug screen, which was negative for all tested medications. Dr. Mann recommended Mr. Prater continue his medications as prescribed and return to his office in three months. Dr. Mann completed a letter to the claims administrator on March 24, 2015, requesting that the medications Hydrocodone, Nexium, Neurontin, Zoloft, Celebrex, and Fioricet be approved for his work injury. On March 27, 2015, the claims administrator denied Dr. Mann's request for Hydrocodone because no opioids were detected in Mr. Prater's system on the March 11, 2015, drug screen.

         The claims administrator approved the medication Zoloft for a sixty-day period in order to allow Mr. Prater time to find an alternate payment source for the medication on March 27, 2015. The claims administrator noted that further payment would not occur because Zoloft was prescribed for anxiety and sleep difficulty, neither of which are compensable components of the claim. By a separate Order on March 27, 2015, the claims administrator denied the authorization request for the medication Fioricet.

         On April 8, 2015, Mr. Prater returned to Dr. Mann for a refill on his medication. According to the office note, Mr. Prater underwent a urine drug screen, which was positive for opiates. However, handwritten on the office note are a circled negative sign and the letters "OPI" for opiates. Dr. Mann stated that Mr. Prater should continue his medications. Mr. Prater returned to Dr. Mann on July 6, 2015, to continue his current medications. It was unclear as to whether Mr. Prater underwent a urine drug screen.

         In a July 8, 2015, letter, Dr. Mann stated that he prescribed Mr. Prater Hydrocodone, Nexium, Neurontin, Zoloft, Celebrex, and Fioricet for the work injury. Dr. Mann stated the medications were prescribed for chronic pain so that he may have quality of life and be able to maintain his functionality. He further stated that Mr. Prater will require the mediations long-term, and his injury will progress with time. The claims administrator responded by stating that it was denying payment for an office visit on July 6, 2015. The claims administrator wrote that it was no longer authorizing narcotic medication; therefore monthly visits to obtain narcotic prescriptions would also not be authorized. In addition, urine drug testing was also not authorized.

         On August 10, 2015, Mr. Prater returned to Dr. Mann to refill his medications. Dr. Mann wrote that Mr. Prater was doing well with no complications. He diagnosed low back pain and did not drug screen Mr. Prater. By an August 24, 2015, letter the claims administrator stated it was not authorizing the August 10, 2015, office visit. Mr. Prater returned to Dr. Mann on September 9, 2015. On September 18, 2015, the claims administrator denied Mr. Prater's request for office visits with Dr. Mann on July 6, 2015, and August 10, 2015.

         On September 30, 2015, Dr. Mann again wrote a letter, which stated that Mr. Prater has an Order from a court that requires the claims administrator to provide lifetime medical treatment for the injury. He stated that Mr. Prater continues to experience back pain from his work injury. He has had further progression of his injuries with the degenerative changes and has exacerbations of his pain, especially when he is unable to get his medications. His medications include Hydrocodone 7.5 mg for breakthrough pain management, Nexium for GI upset secondary to his medications, Neurontin for his neuropathic pain management, Zoloft for anxiety/sleep difficulty, Celebrex for post-traumatic arthritis, and Fioricet for muscle contraction headaches. This has been Mr. Prater's medication regimen for a while and he has been controlled reasonably well with this. Mr. Prater is asking to only be seen on a quarterly basis at which time he will also have a urine drug screen with medications refills in-between for his Hydrocodone, for which refills cannot be provided. Mr. Prater saw Dr. Mann on October 7, 2015, to refill his medications.

         On October 21, 2015, the claims administrator denied an authorization request for the October 7, 2015, office visit with Dr. Mann. An October 28, 2015, Office of Judges Order authorized the medications Hydrocodone and Fioricet. ...


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