PHILIP J. GRINNAN, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and LIFESTYLE HOMES, Employer Below, Respondent
Appeal No. 2051965 (Claim No. 930021260)
Philip J. Grinnan, pro se, appeals the decision of the West
Virginia Workers' Compensation Board of Review. The West
Virginia Office of the Insurance Commissioner, by Anna L.
Faulkner, its attorney, filed a timely response.
issue in this case is whether Mr. Grinnan is entitled to the
requested continued use of the medication OxyContin. The
claims administrator denied the authorization for the
medication OxyContin in an Order dated June 6, 2016. The
Workers' Compensation Office of Judges affirmed the
claims administrator's Order, on April 5, 2017. This
appeal arises from the Board of Review's Final Order
dated September 29, 2017, in which the Board affirmed the
April 5, 2017, Order of the Office of Judges. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Grinnan, a carpenter, sustained an injury to his back on
August 5, 1992. His application for benefits indicates that
he fell from a roof while carrying shingles. He was diagnosed
with an acute left side strain. By Order of the claims
administrator dated December 4, 1992, the claim was held
compensable. Mr. Grinnan was subsequently awarded medical
benefits and temporary total disability benefits. Although
the injury occurred over twenty years ago, Mr. Grinnan
continues to complain of pain as a result of various
procedures to treat his compensable condition. Mr. Grinnan is
under the care of David Bender, M.D., who has been treating
him with various medications, including OxyContin.
9, 2004, Mr. Grinnan underwent an MRI of his lumbar spine.
The MRI revealed postoperative changes on the right side at
L5-S1. A small amount of scar formation near the exiting S1
nerve root was noted.
Grinnan underwent another MRI on September 20, 2007, which
revealed degenerative disc disease and degenerative changes
within the lumbar spine. No focal disc herniation or
significant spinal stenosis was noted. The examiner saw no
obvious postoperative changes or definite local disc
MRI conducted on February 1, 2015, revealed multilevel
degenerative changes, variable disc bulge, and osteophyte
with right L5-S1 neuro-foraminal narrowing. Mr. Grinnan's
paraspinal tissues looked normal according to the 2015
independent medical evaluation report dated August 21, 2015,
Robert B. Walker, M.D., a certified specialist in
occupational medicine, indicated that he had reviewed Mr.
Grinnan's clinical history and performed a physical
examination. Dr. Walker noted that Mr. Grinnan was receiving
Xanax, Wellbutrin, Zanaflex, Neurontin, OxyContin, and DDAVP.
Dr. Walker stated that Mr. Grinnan's imaging studies were
consistent with multilevel degenerative changes and an
operated herniated disc at L4-L5. Dr. Walker opined that Mr.
Grinnan suffers from lumbar disc disease with widespread
degenerative changes, which would best be treated by the
encouragement of activity. Although the cause of Mr.
Grinnan's pain was uncertain, Dr. Walker believed that it
was most consistent with chronic degenerative changes. Dr.
Walker indicated that Mr. Grinnan did not fit within the
diagnosis of failed back surgery syndrome, and he should be
weaned off the medication OxyContin.
addendum report dated September 3, 2015, Dr. Walker
reiterated his opinion that the cause of Mr. Grinnan's
pain was uncertain, but was consistent with chronic
degenerative changes. By Order dated September 24, 2015, Mr.
Grinnan was authorized for the medication OxyContin 20 mg
from November 16, 2015, to February 29, 2016, to provide for
a period of weaning and tapering from such medication or to
secure an alternate payment source.
correspondence dated December 7, 2015, Dr. Bender indicated
that he had reviewed the independent medical evaluation of
Dr. Walker and suggested that Dr. Walker had not had
available to him a copy of the MRI of June 9, 2004, which he
stated specifically indicated the presence of a scar
formation near the exiting S1 nerve root. Dr. Bender
encouraged Dr. Walker to review the case again, taking the
June 9, 2004, MRI into consideration. Dr. Bender explained
that he has been treating Mr. Grinnan for two decades and
that he had attempted to wean him in the past and the
attempts at weaning had left him with the inability to
perform the essential activities of daily living.
20, 2016, Dr. Bender requested authorization for the
continued use of OxyContin as medical treatment to address
Mr. Grinnan's ongoing symptoms. The claims administrator
denied Mr. Grinnan's request for continued authorization
of OxyContin 20 mg in an Order dated June 6, 2016. Mr.
Grinnan protested the claims administrator's Order.
Office of Judges considered the reports from Drs. Bender and
Walker, as well as the MRIs taken in 2004, 2007, and 2015.
The Office of Judges stated that the earlier MRI reports
support the position of Dr. Bender, whereas the later MRIs
support the position of Dr. Walker. The Office of Judges
noted that Dr. Bender did not comment on the 2015 MRI report,
and his statement that it was "very clear from the 2007
report that there was scar tissue on the exiting nerve
root" does not appear within the plain language of the
report. The Office of Judges concluded that the preponderance
of the evidence does not support that the medication
OxyContin is reasonable, necessary, and related to the
Board of Review adopted the reasoning and conclusions of the
Office of Judges and affirmed its decision in an Order dated
September 29, 2017. After review of the evidence, the Board
of Review's Order should be affirmed. The claims
administrator relied upon the opinion of Dr. Walker to deny
the authorization for continued use of OxyContin as medical
treatment. Dr. Walker based his opinion upon the most recent
MRI studies and determined that Mr. Grinnan's pain was
due to degenerative changes and not the result of his