                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

PHILIP J. GRINNAN,                                                                  FILED
                                                                                   March 21, 2018
Claimant Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.)   No. 17-0967 (BOR Appeal No. 2051965)
                   (Claim No. 930021260)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

LIFESTYLE HOMES,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Philip J. Grinnan, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by
Anna L. Faulkner, its attorney, filed a timely response.

       The issue in this case is whether Mr. Grinnan is entitled to the requested continued use of
the medication OxyContin. The claims administrator denied the authorization for the medication
OxyContin in an Order dated June 6, 2016. The Workers’ Compensation Office of Judges
affirmed the claims administrator’s Order, on April 5, 2017. This appeal arises from the Board of
Review’s Final Order dated September 29, 2017, in which the Board affirmed the April 5, 2017,
Order of the Office of Judges. 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.
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       Mr. Grinnan, a carpenter, sustained an injury to his back on August 5, 1992. His
application for benefits indicates that he fell from a roof while carrying shingles. He was
diagnosed with an acute left side strain. By Order of the claims administrator dated December 4,
1992, the claim was held compensable. Mr. Grinnan was subsequently awarded medical benefits
and temporary total disability benefits. Although the injury occurred over twenty years ago, Mr.
Grinnan continues to complain of pain as a result of various procedures to treat his compensable
condition. Mr. Grinnan is under the care of David Bender, M.D., who has been treating him with
various medications, including OxyContin.

        On June 9, 2004, Mr. Grinnan underwent an MRI of his lumbar spine. The MRI revealed
postoperative changes on the right side at L5-S1. A small amount of scar formation near the
exiting S1 nerve root was noted.

        Mr. Grinnan underwent another MRI on September 20, 2007, which revealed
degenerative disc disease and degenerative changes within the lumbar spine. No focal disc
herniation or significant spinal stenosis was noted. The examiner saw no obvious postoperative
changes or definite local disc herniation

       A third MRI conducted on February 1, 2015, revealed multilevel degenerative changes,
variable disc bulge, and osteophyte with right L5-S1 neuro-foraminal narrowing. Mr. Grinnan’s
paraspinal tissues looked normal according to the 2015 imaging studies.

        In an independent medical evaluation report dated August 21, 2015, Robert B. Walker,
M.D., a certified specialist in occupational medicine, indicated that he had reviewed Mr.
Grinnan’s clinical history and performed a physical examination. Dr. Walker noted that Mr.
Grinnan was receiving Xanax, Wellbutrin, Zanaflex, Neurontin, OxyContin, and DDAVP. Dr.
Walker stated that Mr. Grinnan’s imaging studies were consistent with multilevel degenerative
changes and an operated herniated disc at L4-L5. Dr. Walker opined that Mr. Grinnan suffers
from lumbar disc disease with widespread degenerative changes, which would best be treated by
the encouragement of activity. Although the cause of Mr. Grinnan’s pain was uncertain, Dr.
Walker believed that it was most consistent with chronic degenerative changes. Dr. Walker
indicated that Mr. Grinnan did not fit within the diagnosis of failed back surgery syndrome, and
he should be weaned off the medication OxyContin.

       In an addendum report dated September 3, 2015, Dr. Walker reiterated his opinion that
the cause of Mr. Grinnan’s pain was uncertain, but was consistent with chronic degenerative
changes. By Order dated September 24, 2015, Mr. Grinnan was authorized for the medication
OxyContin 20 mg from November 16, 2015, to February 29, 2016, to provide for a period of
weaning and tapering from such medication or to secure an alternate payment source.

       In correspondence dated December 7, 2015, Dr. Bender indicated that he had reviewed
the independent medical evaluation of Dr. Walker and suggested that Dr. Walker had not had
available to him a copy of the MRI of June 9, 2004, which he stated specifically indicated the
presence of a scar formation near the exiting S1 nerve root. Dr. Bender encouraged Dr. Walker
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to review the case again, taking the June 9, 2004, MRI into consideration. Dr. Bender explained
that he has been treating Mr. Grinnan for two decades and that he had attempted to wean him in
the past and the attempts at weaning had left him with the inability to perform the essential
activities of daily living.

       On May 20, 2016, Dr. Bender requested authorization for the continued use of
OxyContin as medical treatment to address Mr. Grinnan’s ongoing symptoms. The claims
administrator denied Mr. Grinnan’s request for continued authorization of OxyContin 20 mg in
an Order dated June 6, 2016. Mr. Grinnan protested the claims administrator’s Order.

       The Office of Judges considered the reports from Drs. Bender and Walker, as well as the
MRIs taken in 2004, 2007, and 2015. The Office of Judges stated that the earlier MRI reports
support the position of Dr. Bender, whereas the later MRIs support the position of Dr. Walker.
The Office of Judges noted that Dr. Bender did not comment on the 2015 MRI report, and his
statement that it was “very clear from the 2007 report that there was scar tissue on the exiting
nerve root” does not appear within the plain language of the report. The Office of Judges
concluded that the preponderance of the evidence does not support that the medication
OxyContin is reasonable, necessary, and related to the compensable injury.

       The Board of Review adopted the reasoning and conclusions of the Office of Judges and
affirmed its decision in an Order dated September 29, 2017. After review of the evidence, the
Board of Review’s Order should be affirmed. The claims administrator relied upon the opinion
of Dr. Walker to deny the authorization for continued use of OxyContin as medical treatment.
Dr. Walker based his opinion upon the most recent MRI studies and determined that Mr.
Grinnan’s pain was due to degenerative changes and not the result of his compensable condition.
The evidence of record does not support that OxyContin is reasonable, necessary, and related to
the compensable injury.

        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: March 21, 2018

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


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