                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
ROGER J. SPENCER,                                                              November 14, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0017 (BOR Appeal No. 2046087)
                   (Claim No. 960053955)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

HOBET MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Roger J. Spencer, by Steven M. Thorne, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Jack M. Rife, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 7, 2011, in
which the Board affirmed a June 17, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 25, 2011,
Order denying authorization for Fentanyl Transdermal Patches. 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. Spencer sustained a compensable lumbosacral strain on June 3, 1996, while working
for Hobet Mining, Inc. On January 20, 2011, Mr. Spencer requested authorization for Fentanyl
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Transdermal Patches. On January 25, 2011, the claims administrator denied authorization
pursuant to West Virginia Code of State Rules § 85-20-53.14 (a) (2006).

        The Office of Judges determined that the preponderance of the evidence established that
Fentanyl Transdermal Patches are not medically necessary and reasonably required in the course
of treatment for Mr. Spencer’s compensable injury. Mr. Spencer appealed and argues that the
preponderance of the evidence shows that his case is extraordinary and that Fentanyl
Transdermal Patches are reasonably necessary as medical treatment for his compensable injury.
The West Virginia Office of Insurance Commissioner argues that the medical evidence failed to
establish that Mr. Spencer was entitled to authorization for the controlled substance. On January
20, 2011, Dr. Deer submitted a one page handwritten request for authorization for Fentanyl
Transdermal Patches. The request contained no details or explanation as to why a Schedule II
medication was being requested.

       The Office of Judges found that Dr. Deer’s request and the medical records from the
Center for Pain Control do not provide the documentation necessary for authorization of
Fentanyl Transdermal Patches, nearly fifteen years after the compensable injury occurred. The
Office of Judges noted that Dr. Deer’s request dated January of 2011 for authorization for
Fentanyl Transdermal Patches consisted of a one page handwritten form request and contained
no explanation for the request. The Office of Judges further noted that the only evidence Mr.
Spencer submitted was treatment records from The Center for Pain Relief for treatment of
numerous conditions. The Office of Judges found it unclear which of the conditions and
treatments referred to in these records have been authorized under the instant claim. The Office
of Judges noted the records submitted by The Center for Pain Relief were no different from April
17, 2002, to June 14, 2007, than those that were reviewed during the litigation of the claims
administrator’s April 23, 2007, Order, which previously denied Duragesic and Oxycodone. The
Office of Judges determined that the preponderance of the evidence established that Fentanyl is
not medically necessary and reasonably required in the course of treatment for Mr. Spencer’s
compensable injury. The Board of Review reached the same reasoned conclusions. We agree
with the reasoning and conclusions of the Board of Review.

        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: November 14, 2013

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