                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 28, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SHIRLEY A. SNYDER,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1341 (BOR Appeal No. 2047329)
                   (Claim No. 2001018950)

BAYER CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Shirley A. Snyder, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Bayer Corporation, by Lucinda
Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 19, 2012, in
which the Board affirmed a May 25, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges denied Ms. Snyder’s request for attorney’s fees and
costs arising from the litigation of the claims administrator’s March 29, 2011, decision denying
Ms. Snyder’s request for retroactive authorization of injections of the medications Decadron and
Kenalog. 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.

       Ms. Snyder injured her back, knee, and head on September 27, 2000, when she tripped
over the forks of a forklift. On March 24, 2011, Gregory Wood, D.O., Ms. Snyder’s treating
physician, submitted a request for retroactive authorization of injections of the medications
Decadron and Kenalog that were administered on February 2, 2011, and March 18, 2011. The
claims administrator denied the request on March 29, 2011. Following litigation and the ultimate
reversal of the claims administrator’s March 29, 2011, decision, Ms. Snyder filed a petition for
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attorney’s fees and costs arising from the litigation of the March 29, 2011, claims administrator’s
decision.

       In its Order of May 25, 2012, the Office of Judges held that Ms. Snyder is not entitled to
an award of attorney’s fees and costs stemming from the litigation of the March 23, 2011, claims
administrator’s decision based on a finding that the claims administrator’s decision was not
unreasonable. Ms. Snyder disputes this finding and asserts that the claims administrator’s denial
of her request for retroactive authorization of the Decadron and Kenalog injections was
unreasonable because sufficient medical justification existed at the time of the claims
administrator’s denial to demonstrate that the injections constituted reasonably required medical
treatment.

       West Virginia Code § 23-2C-21(c) (2009) states:

               Upon a determination by the Office of Judges that a denial of
               compensability, a denial of an award of temporary total disability
               or a denial of an authorization for medical benefits was
               unreasonable, reasonable attorney's fees and the costs actually
               incurred in the process of obtaining a reversal of the denial shall be
               awarded to the claimant and paid by the private carrier or self-
               insured employer which issued the unreasonable denial. A denial is
               unreasonable if, after submission by or on behalf of the claimant,
               of evidence of the compensability of the claim, the entitlement to
               temporary total disability benefits or medical benefits, the private
               carrier or self-insured employer is unable to demonstrate that it had
               evidence or a legal basis supported by legal authority at the time of
               the denial which is relevant and probative and supports the denial
               of the award or authorization.

        The Office of Judges found that the claims administrator’s denial of Ms. Snyder’s request
for retroactive authorization of Decadron and Kenalog injections occurred pursuant to West
Virginia Code of State Rules § 85-20-9.9 (2006), which provides that retroactive authorization
will not be granted for services that require prior approval. The Office of
Judges found that the claims administrator’s denial of authorization for Decadron and Kenalog
was substantiated by West Virginia Code of State Rules § 85-20-9.9 and West Virginia Code of
State Rules § 85-20-9.10 (2006) because the requested authorization came after the injections
had already been administered. The Office of Judges further found that the claims administrator
had an additional viable reason for denying the requested authorization, in that the claims
administrator had previously denied authorization for Decadron on the same grounds. Finally,
the Office of Judges concluded that the record indicates the claims administrator did not have
sufficient evidence at the time of its March 29, 2011, decision to conclude that Decadron and
Kenalog injections constituted reasonable medical treatment for Ms. Snyder’s compensable
injuries. The Board of Review reached the same reasoned conclusions in its decision of October
19, 2012. We agree with the reasoning and conclusions of the Board of Review.

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        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.

                                                                                        Affirmed.

ISSUED: March 28, 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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