                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              December 2, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
RUSTY S. GLEASON,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1129 (BOR Appeal No. 2048151)
                   (Claim No. 2011007442)

HUNTINGTON ALLOYS CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Rusty S. Gleason, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Huntington Alloys Corporation, by
Steven K. Wellman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 7, 2013, in
which the Board reversed a February 4, 2013, Order of the Workers’ Compensation Office of
Judges insofar as it granted authorization for Nucynta and an office visit to discuss a spinal cord
stimulator. In its Order, the Office of Judges reversed the claims administrator’s January 20,
2012, decision and authorized the medications Neurontin, Zanaflex, and Nucynta as well as an
office visit to discuss implementation of a spinal cord stimulator. 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. Gleason worked on the assembly line for Huntington Alloys Corporation. On August
4, 2010, Mr. Gleason experienced an onset of pain and stiffness in his lower back. Several weeks
later, he was treated by Evelyn Webb, RN, who diagnosed him with a lumbar sprain. Paul
Bachwitt, M.D., evaluated Mr. Gleason and determined that he had normal sensation in his lower
back. Following this evaluation, the claims administrator held the claim compensable for a
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lumbar sprain. A microdiscectomy, which the claims administrator authorized, was then
performed on Mr. Gleason’s L5-S1 disc. Marsha Bailey, M.D., evaluated Mr. Gleason and found
that he had received six weeks of physical therapy following his surgery but still complained of
pain radiating into his legs. Dr. Bailey recommended that he be referred for pain management
treatment including lumbar epidural steroid injections. However, she specifically stated that Mr.
Gleason should not receive a spinal cord stimulator because it was an ineffective method of pain
management. Dr. Bailey found that once Mr. Gleason received epidural steroid injections he
would have reached his maximum degree of medical improvement. Mr. Gleason then came
under the care of David L. Caraway, M.D., who found that the injections Mr. Gleason received
did not relieve his pain. Dr. Caraway prescribed Neurontin, Zanaflex, and Nucynta. Dr. Caraway
specifically stated that Nucynta was the most effective pain management medication he generally
prescribed. Dr. Caraway also requested authorization for an office visit to discuss inserting a
spinal cord stimulator.

        On January 20, 2012, the claims administrator denied authorization for the medications
Neurontin, Zanaflex, and Nucynta as well as the office visit. Prasadarao B. Mukkamala, M.D.,
then evaluated Mr. Gleason. He found that Mr. Gleason continued to complain of pain in his low
back, hips, and legs. Dr. Mukkamala found that Mr. Gleason had reached his maximum degree
of medical improvement and recommended that authorization for a spinal cord stimulator be
denied because Mr. Gleason’s reported symptoms were significantly out of proportion with any
noted injury. Dr. Mukkamala recommended denying authorization for Neurontin and Zanaflex
because he found no evidence of radiculopathy or muscle spasms. Dr. Mukkamala recommended
that authorization for Nucynta be denied because it was a narcotic pain medication. On February
4, 2013, the Office of Judges reversed the claims administrator’s decision and granted
authorization for Neurontin, Zanaflex, and Nucynta as well as the office visit to discuss a spinal
cord stimulator. The Board of Review reversed the Order of the Office of Judges on October 7,
2013, insofar as it granted authorization for the medication Nucynta and an office visit related to
a spinal cord stimulator. The Board of Review affirmed the Order of the Office of Judges insofar
as it granted authorization for the medications Neurontin and Zanaflex. Mr. Gleason has
appealed the decision of the Board of Review insofar as it denied authorization for Nucynta and
the office visit to discuss a spinal cord stimulator.

        The Office of Judges concluded that the prescriptions Nucynta, Neurontin, and Zanaflex
as well as the office visit with Dr. Caraway to discuss inserting a spinal cord stimulator were
medically related and reasonably required to treat Mr. Gleason’s compensable injury. In reaching
this determination, the Office of Judges relied on the treatment notes of Dr. Caraway because his
report was more consistent with Mr. Gleason’s position. The Office of Judges also relied on Dr.
Caraway’s opinion because he was Mr. Gleason’s treating physician.

        In reversing the Office of Judges’ Order, the Board of Review concluded that it was
clearly wrong insofar as it authorized the medication Nucynta and the office visit to discuss
inserting a spinal cord stimulator. The Board of Review determined that Dr. Caraway’s treatment
notes did not provide sufficient support to justify authorizing Nucynta or a spinal cord
stimulator. The Board of Review relied on the opinions of Dr. Bailey and Dr. Mukkamala, who
both found that the spinal cord stimulator was not required to treat Mr. Gleason’s condition. The
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Board of Review also found that Nucynta was a schedule II narcotic and Dr. Caraway’s request
fell outside the time limits for prescribing the medication under West Virginia Code of State
Rules § 85-20-53.14 (2006). The Board of Review agreed with the Office of Judges regarding its
authorization of Neurontin and Zanaflex, and it affirmed the Office of Judges’ Order regarding
those medications.

        We agree with the conclusions of the Board of Review. Mr. Gleason has not
demonstrated that the medication Nucynta and an office visit with Dr. Caraway to discuss
inserting a spinal cord stimulator is medically related and reasonably required to treat his
compensable injury. The evidence in the record shows that Nucynta is a schedule II controlled
substance. Mr. Gleason’s current request falls well outside the two-week time limit
recommended under West Virginia Code of State Rules § 85-20-53.14(a) for prescribing this
type of medication. The evidence in the record does not indicate that this is an extraordinary case
in which Nucynta should be authorized beyond this time limit. The evidence in the record also
does not support authorizing an office visit to discuss a spinal cord stimulator. The only evidence
supporting Mr. Gleason’s request is Dr. Caraway’s treatment notes. Dr. Caraway, however, does
not demonstrate that Mr. Gleason’s ongoing symptoms are related to his compensable injury. He
also does not demonstrate that the spinal cord stimulator will be a more effective method of pain
management than the treatments already authorized by the claims administrator. Mr. Gleason’s
request is further weakened by the opinions of Dr. Bailey and Dr. Mukkamala. Dr. Caraway’s
treatment notes do not provide sufficient support for the requested office visit in light of Dr.
Bailey’s and Dr. Mukkamala’s criticism of spinal cord stimulator treatment.

        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: December 2, 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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