                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 25, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

JAMES H. THOMPSON JR,
Claimant Below, Petitioner

vs.)   No. 11-1475 (BOR Appeal No. 2045642)
                    (Claim No. 950037384)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

DAVID THOMPSON,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner James H. Thompson Jr., pro se appeals the decision of the West Virginia
Workers’ Compensation Board of Review. West Virginia Office of the Insurance Commissioner,
by Mary Rich Maloy, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 3, 2011, in
which the Board partially reversed a February 11, 2011, Order of the Workers’ Compensation
Office of Judges. In its Order, the Office of Judges reversed the claims administrator’s August
20, 2010, Order which denied authorization for a spinal cord stimulator, Bupap, Ambien,
Duragesic patches, and Neurontin. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
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circumstances” requirement of Rule 21 (d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

        On February 16, 1995, Mr. James H. Thompson Jr. was working as a heavy equipment
operator/truck driver for David Thompson, when he sustained injuries to his back while pulling a
wench cable. Mr. Thompson’s claim was held compensable for multiple injuries. Mr. Thompson
has had six surgeries on his back, has tried morphine pumps for pain relief, and his pain is now
managed by a pain specialist. Mr. Thompson’s pain management specialist, Dr. Gutti, requested
a spinal cord stimulator, Bupap, Ambien, Duragesic patches, and Neurontin. On August 2, 2010,
the claims administrator denied Mr. Thompson’s request based upon Dr. Mukkamala’s opinion
that there was no causal relationship between the compensable injury and Mr. Thompson’s
complaints of pain. Mr. Thompson appealed.

        The Office of Judges ruled that the weight of the evidence supports authorization for a
spinal cord stimulator, Bupap, Ambien, Duragesic patches, and Neurontin as reasonably required
medical treatment for Mr. Thompson’s February 16, 1995, compensable injuries. The Office of
Judges found Dr. Mukkamala’s assertion that Mr. Thompson needed only a home exercise
program to treat his severe failed low back syndrome unpersuasive. The Office of Judges
reasoned that Dr. Gutti’s report supported the findings that the requested medications are
reasonably required for treating Mr. Thompson’s condition. It further noted that restrictions on
medications do not apply in extraordinary cases. The Office of Judges found that having six low
back surgeries was an extraordinary case and that restrictions on the medications were not
applicable.

        The Board of Review found that the Office of Judges’s authorization of the medications
Bupap, Ambien, and Duragesic patches was clearly wrong. The Board of Review noted that Dr.
Gutti’s report of July 20, 2010, stated the medications were justified because Mr. Thompson has
had multiple back operations and continues to have post laminectomy syndrome scarring,
radiculitis, and neuropathic pain. The Board of Review found that Dr. Gutti’s report and other
evidence failed to provide the necessary documentation for the authorization of controlled
substances beyond the limited time period after the initial injury or subsequent surgery. We
agree with the reasoning and conclusion of the Office of Judges.

        For the foregoing reasons, we find that the decision of the Board of Review is clearly the
result of erroneous conclusions of law. Therefore, the decision of the Board of Review is
reversed.

                                                                            Reverse and Remand.


ISSUED: October 25, 2013

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

DISSENTING:
Justice Robin J. Davis




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