                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 3, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CONSOLIDATION COAL COMPANY,                                                   OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0966	 (BOR Appeal No. 2048262)
                    (Claim No. 2001056879)


CHARLES G. DELBERT,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Consolidation Coal Company, by Edward M. George III, its attorney, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Charles G. Delbert,
by M. Jane Glauser, his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 5, 2013, in
which the Board affirmed a March 28, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges granted attorney’s fees incurred in the protest of the
claims administrator’s June 22, 2012, decision. Consolidation Coal Company is appealing the
Board of Review’s authorization of attorney’s fees and costs. 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. Delbert was injured in the course of his employment on April 25, 2001, when
working as a coal miner for Consolidation Coal Company. The claim was held compensable for
thoracic sprain and displacement intervertebral disc without myelopathy. On June 22, 2012, the
claims administrator denied Mr. Delbert’s request for Wellbutrin and found that the medical
information forwarded by Mr. Delbert’s attorney did not justify the request. Mr. Delbert
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appealed this decision. The Office of Judges reversed the claims administrator’s June 22, 2012,
decision and authorized the medication Wellbutrin. Mr. Delbert then requested attorney’s fees
and costs for the protest of the claims administrator’s June 22, 2012, decision, which resulted in
a reversal.

        The Office of Judges granted Mr. Delbert’s petition for attorney’s fees and costs arising
from the protest of the claims administrator’s June 22, 2012, decision that denied authorization
for the medication Wellbutrin. The Board of Review affirmed the Order of the Office of Judges.
On appeal, Consolidation Coal Company disagrees and asserts that the claims administrator’s
denial of the requested medication Wellbutrin was not unreasonable based upon the facts and law
that existed at the time of the claims administrator’s decision. Consolidation Coal Company
further argues that the denial complied with West Virginia Code § 23-2C-21(c) (2009) and that
Mr. Delbert’s evidence did not support the request. Mr. Delbert maintains that the claims
administrator unreasonably denied the request for medication because it had all the medical
evidence relied on by him and used by the Office of Judges to reverse the claims administrator’s
decision. Mr. Delbert further maintains that his treating physician, Thomas G. Wack, M.D.,
found the medication was medically necessary and reasonable for his depression and pain
associated with this claim.

        The Office of Judges reversed the claims administrator’s decision and authorized the
medication Wellbutrin. Dr. Wack concluded that Wellbutrin was medically necessary and
reasonable for Mr. Delbert’s compensable injury. The Office of Judges noted that Mr. Delbert
had been receiving Wellbutrin or a similar medication for several years through workers’
compensation and the claims administrator would have been aware of this. The Office of Judges
also found the claims administrator had Dr. Wack’s June 19, 2012, medical statement and his
June 19, 2012, request for authorization of medication at the time of its decision. West Virginia
Code § 23-2C-21(c) states that if the Office of Judges finds a denial of medical benefits was
unreasonable, then reasonable attorney’s fees and costs incurred in the process of obtaining a
reversal of the denial shall be awarded to the claimant. The Office of Judges concluded that the
claims administrator’s denial of medication was unreasonable based on the evidence available to
the claims administrator at the time of its decision and therefore, Mr. Delbert is entitled to
attorney’s fees and cost under West Virginia Code § 23-2C-21(c). The Board of Review agreed
with the findings and conclusions of the Office of Judges.

        This Court agrees with the conclusions of the Board of Review and the findings of the
Office of Judges. The claims administrator knew Mr. Delbert had previously been granted
Wellbutrin in this claim. The claims administrator had all the medical evidence that the Office of
Judges relied on in making its reversal and finding Wellbutrin medically reasonable and
necessary. This Court affirms the Order of the Board of Review and holds Mr. Delbert is entitled
to attorney’s fees and costs incurred in the protest of the claims administrator’s June 22, 2012,
decision that resulted in a reversal.

        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

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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: December 3, 2014

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




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