                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 15, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CHARLES G. DELBERT,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0257 (BOR Appeal No. 2047771)
                   (Claim No. 990051738)

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


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

       This appeal arises from the Board of Review’s Final Order dated February 12, 2013, in
which the Board affirmed a September 24, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges denied attorney’s fees incurred in the protest of the
claims administrator’s November 16, 2011, decision which denied a request for the medications
Gabapentin and Metaxalone. 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 February 13, 1999, when
working as a coal miner for Consolidation Coal Company. The claim was held compensable. On
November 16, 2011, the claims administrator denied Mr. Delbert’s request for the medications
Gabapentin and Metaxalone since the same medications were requested in a separate claim
where he suffered an injury resulting in a thoracic sprain. The Office of Judges reversed the
claims administrator’s November 16, 2011, decision and held that the medications Gabapentin

                                                1
and Metaxalone are medically related and reasonably required for the compensable injury. Mr.
Delbert then requested attorney’s fees and costs.

        The Office of Judges denied Mr. Delbert’s petition for attorney’s fees and costs arising
from the reversal of the claims administrator’s November 16, 2011, decision and found the
denial of the medications was not unreasonable at the time of the Order. The Board of Review
affirmed the Office of Judges’ Order. On appeal, Mr. Delbert disagrees and asserts that the
claims administrator did not deny the medications based on medical necessity or reasonableness
but for the clerical error that the medications were already requested in another claim. He further
asserts that the facts and law permitted these medications at the time of denial and therefore, the
denial of medication was unreasonable and contrary to the evidence, statutes, regulations, and
case law. Consolidation Coal Company maintains that the claims administrator’s denial of the
medications was not unreasonable at the time of the claims administrator’s decision because the
matter was complicated by the treating physician requesting the same medications in a separate
claim.

        The Office of Judges determined that even though Mr. Delbert received a successful
appeal of the claims administrator’s November 16, 2011, decision that this did not necessarily
entitle Mr. Delbert to attorney’s fees and costs. The Office of Judges found that this matter was
complicated by the treating physician requesting the same medications in two separate claims
that involved two separate injuries. In the other claim, the claims administrator requested
additional documentation, and it was not submitted, which lead to the denial of the medications.
The Office of Judges found that the treating physician requested the medications in this claim
after requesting the same medications in the other claim. West Virginia Code § 23-2C-21(c)
(2009) 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 did not act unreasonably in its decision as required under West Virginia Code § 23­
2C-21(c) based on the evidence available to the claims administrator at the time of its decision.
The Board of Review agreed with the findings and conclusions of the Office of Judges. The
evidence does not prove that the claims administrator acted unreasonable in denying these
medications. This Court agrees with the conclusions of the Board of Review and the findings of
the Office of Judges.

        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: October 15, 2014


                                                2
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




                               3
