                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

GEORGE F. BUTCHER,                                                                  FILED
                                                                                 February 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0161 (BOR Appeal No. 2050582)
                   (Claim No. 800025170)


WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER,
Commission Below, Respondent

and

A.C. DELLOVADE, INC.,
Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner George F. Butcher, by Patrick K. Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. West Virginia Office of the
Insurance Commissioner, by Noah Barnes, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated January 29, 2016, in
which the Board affirmed a May 29, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 16, 2014,
decision to deny a request for authorization of the medications Vyvanse and Ketamine. 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Butcher, an iron worker for A.C Dellovade, Inc., suffered injury in the course of and
as a result of his employment on October 3, 1979, which required a below the knee amputation
of one of his legs. A treatment note from Dr. Upshaw dated October 8, 2013, indicated that the
use of the medication Ketamine should be approved because it helps the phantom pain associated
with Mr. Butcher’s leg amputation.

        Records from Thomas Upshaw, M.D., Mr. Butcher’s treating physician, dated December
2, 2013, indicated that Mr. Butcher was seen for continued leg pain and phantom limb pain. Mr.
Butcher reported stress, low mood, and low concentration. Dr. Upshaw noted that Mr. Butcher
was easily distracted, prone to mistakes, and had low focus. He suggested a trial of the attention
deficit hyperactivity disorder medication Vyvanse. He diagnosed depressive disorder, anxiety
disorder, and phantom pain. Another record from Dr. Upshaw indicated that the medication
Lyrica seemed to be helping the phantom limb pain and the Vyvanse was helping with the
depression and attention deficit hyperactivity disorder. On January 16, 2014, the claims
administrator denied the medications Vyvanse and Ketamine. Notes from Dr. Upshaw dated
April 11, 2014, stated that the Vyvanse gave Mr. Butcher energy and focus to engage effectively
in recovery activities including preventative application of an antibiotic cream, which the
claimant would forget to apply due to attention deficit hyperactivity disorder impairing his
planning and executing.

        The Office of Judges denied both of the requested medications because it determined that
the evidence of record did not support their use. The Office of Judges found that Mr. Butcher did
not submit any evidence concerning the denial of the medication Ketamine. The Office of Judges
found that the authorization of the medication Vyvanse appeared to be requested for the
treatment of attention deficit hyperactivity disorder. Because no evidence was submitted
demonstrating that attention deficit hyperactivity disorder was a compensable condition, the
Office of Judges denied the request. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

        After review, we agree with agree with the consistent decisions of Office of Judges and
Board of Review. The evidence of record indicates that the medication Vyvanse was primarily
prescribed for the treatment of attention deficit hyperactivity disorder, which is not a
compensable condition. The request for the medication Ketamine was not supported by the
evidence of record. Mr. Butcher’s only evidence regarding the medication Ketamine is a slip
from Dr. Upshaw prescribing it for phantom pain. According to the treatment notes from Dr.
Upshaw, Mr. Butcher was already taking Lyrica and Vicodin for the phantom pain. Because the
evidence of record did not support approving the request for either medication, it was proper for
the Office of Judges and Board of Review to deny them.

        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

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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: February 3, 2017


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

DISSENTING:
Justice Margaret L. Workman




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