                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
WEST VIRGINIA OFFICE OF                                                       OF WEST VIRGINIA

INSURANCE COMMISSIONER
Commissioner Below, Petitioner

and

KIMBALL COAL, INC.,
Employer Below, Petitioner


vs.)   No. 14-1246 (BOR Appeal No. 2049476)
                   (Claim No. 910012158)

JAMES W. LOWERY,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner West Virginia Office of the Insurance Commissioner, by Dawn E. George, its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
James W. Lowery, pro se, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated October 29, 2014, in
which the Board reversed the May 8, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 13, 2013,
decision to deny the request from Mr. Lowery’s treating physician for authorization of the
medications Neurotin 800 mg, Ultram 50 mg, Vistaril 25 mg, and Lodine XL. The Board of
Review authorized Mr. Lowery’s request for all the medications except for Ultram 50 mg. 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. Lowery, a coal miner for Kimball Coal, Inc., sustained a compensable lumbar spine
strain on September 17, 1990. Mr. Lowery ultimately received a 5% permanent partial disability
award for the injury. Mr. Lowery also received a permanent total disability award on March 20,
1995, for the multiple injuries he sustained while being a coal miner. On December 4, 2012, Mr.
Lowery underwent an independent medical evaluation by Jerry Scott, M.D. Dr. Scott’s range of
motion study demonstrated forward flexion of twenty degrees, extended zero degrees and lateral
ten degrees bilaterally. Mr. Lowery reported his range of motion was pain limited. Dr. Scott
indicated that Mr. Lowery’s subjective complaints were not related to the compensable injury in
the instant claim. He indicated that Mr. Lowery’s complaints were more likely secondary to a
history of degenerative disk disease and that the treatment rendered to Mr. Lowery was not
related to his compensable injury. Dr. Scott suggested that Mr. Lowery’s lumbar sprain,
experienced in 1990, should have resolved by this point in time.

        Mr. Lowery reported to the emergency room at Princeton Community Hospital on March
14, 2013. The report indicates that Mr. Lowery complained of low back pain radiating into the
back of his thighs. It also noted an compression fracture of T8 and L4 in 1975. Mr. Lowery
indicated he had experienced back pain since that injury. An x-ray examination was interpreted
as revealing L5-S1 degenerative changes and subluxation at L5. An old mild compressive
deformity of the L4 vertebral body was identified. Mr. Lowery was diagnosed as experiencing
lumbar radiculopathy and chronic low back pain. He was discharged with a prescription of
medication for his symptoms and instructions to follow-up with a neurosurgeon. Attached to the
report were radiology reports addressing Mr. Lowery’s cervical spine and thoracic spine. In the
cervical spine he was diagnosed as suffering from diffuse cervical spondylosis. In the thoracic
spine he was diagnosed with having dextroconvex scoliosis with hyperkyphotic curvature, likely
chronic in nature. A report from Mr. Lowery’s treating physician, Robert Kropac, M.D., dated
March 27, 2013, indicated that Dr. Kropac disagreed with Dr. Scott’s conclusions. Dr. Kropac
commented that Mr. Lowery had no symptoms prior to his worker’s compensation injuries, and
disagreed that Mr. Lowery had pre-existing arthritis. He believed that Mr. Lowery was in need of
ongoing treatment as a result of the compensable injury and required medication for control of
his symptoms. He believed that Mr. Lowery would continue to need additional treatment into the
future.

        On August 13, 2013, the claims administrator denied the request for authorization of the
medications Neurontin 800 mg, Ultram 50 mg, Vistaril 25 mg, and Lodine XL based upon Dr.
Scott’s independent medical evaluation. Mr. Lowery timely protested the Order. On November
7, 2013, Mr. Lowery had an MRI of his lumbar spine. It was interpreted as revealing mild spinal
stenosis at L2-3, moderate spinal stenosis at L3-4, severe spinal stenosis at L4-5 resulting from a
combination of congenitally narrow spinal canal, discogenic disease, and ligamentous
hypertrophy together with severe bilateral neuroforaminal stenosis at the L4-5 and L5-S1 levels.

       On January 13, 2014, Mr. Lowery was seen again by Dr. Kropac. Dr. Kropac performed
a physical examination of Mr. Lowery and diagnosed him as suffering from cervical disc
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herniation without radiculopathy, lumbosacral musculoligamentous strain, and old compression
fracture at T8. He noted that the most recent MRI did not show a disc herniation but did
demonstrate degenerative changes, which he believed was related to his compensable injury of
1990. He indicated that Mr. Lowery had no history of any prior back problems prior to 1990, and
based upon that understanding and the absence of any other information, he related Mr.
Lowery’s low back complaints to the compensable injury.

         At a hearing on March 17, 2014, Mr. Lowery, pro se, testified that he was receiving
permanent total disability for the combined effects of his occupational injuries and diseases. He
testified that he was having problems with his neck, between his shoulder blades, and his lower
back, running into his hips and legs. Mr. Lowery confirmed that he had experienced a substantial
back injury in 1975, at the L4 level. He testified that he worked for sixteen years after he broke
his back for the first time. Mr. Lowery testified he had originally been treated by Roy R. Raub,
M.D., and Clifford Carlson, M.D., before being referred to Dr. Kropac. Specifically Mr. Lowery
submitted a treatment note from Dr. Carlson dated December 22, 2006, which indicated that Mr.
Lowery was prescribed Vistaril, Lyrica, Lodine XL, Ultram, and Lortab for severe to very severe
pain. Mr. Lowery also testified that it was his understanding that Dr. Kropac was treating him for
all three of his claims. Dr. Kropac continued prescribing Mr. Lowery various medication for pain
as well as anti-inflammatory drugs. Mr. Lowery testified that he hurt the worst between his
shoulder blades running up to his neck. On cross examination, Mr. Lowery represented that he
had not experienced any injuries since 1990. He testified that since 1990 his pain had increased.
He denied having had surgery. Mr. Lowery represented that he had seen John Schmidt, M.D., a
neurosurgeon, for a second opinion regarding his back, but did not receive more than an
evaluation.

        The Office of Judges determined that the specified medications were not medically
related and reasonably required to treat his September 17, 1990, lumbar strain. The Office of
Judges noted that the main question was whether Mr. Lowery’s present complaints of pain were
related to his compensable injury of September 17, 1990. The Office of Judges determined that
because Mr. Lowery’s cervical spine, his shoulders, and mid back are unrelated to the
compensable injury sustained on September 17, 1990, that medications should not be approved
for those areas. The Office of Judges chose not to rely on Dr. Kropac’s report because Dr.
Kropac did not indicate he had any knowledge of Mr. Lowery’s low back injury in 1975, which
Mr. Lowery himself characterized as a broken back. Mr. Lowery represented this substantial
injury to the emergency room in 2013 and again at his hearing. Because of the more serious
injury, the Office of Judges concluded Dr. Kropac’s assertion that Mr. Lowery’s degenerative
disc disease was attributable to the instant injury was erroneous. Therefore, the Office of Judges
adopted the report of Dr. Scott, which found Mr. Lowery to be at his maximum degree of
medical improvement.

        The Board of Review reversed the Office of Judges’ Order and found that the requested
medications, with the exception of Ultram, were medically related and reasonably required to
treat his injuries. The Board of Review pointed out that Mr. Lowery was granted a permanent
total disability award by the Office of Judges on March 20, 1995. Then on December 22, 2006,
Dr. Carlson indicated that Mr. Lowery was taking the medications Vistaril, Lyrica, Lodine XL,
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Ultram, and a limited dose of Lortab. On October 18, 2007, Dr. Kropac reported that Mr. Lowery
had been treated by Dr. Carlson until Dr. Carlson closed his office in March of 2007. Dr. Kropac
evaluated Mr. Lowery and recommended that he continue medications, including non-steroidal
anti-inflammatory medication, analgesic medication, muscle relaxants, and possible medications
for control of neuropathic pain. On March 27, 2013, Dr. Kropac opined that Mr. Lowery is in
need of ongoing treatment as a direct result of his compensable injury, which treatment will
require continued use of Neurontin, Ultram, Vistaril and Lodine. On January 13, 2014, Dr.
Kropac indicated that Mr. Lowery reported that the pain is most tolerable with the use of the
medications. Because of the seriousness of the injury and the fact that the medications are
working, the Board of Review concluded the medications were medical related and reasonably
required to treat his injuries. The Board of Review noted that Ultram is a controlled substance
and under West Virginia Code of State Rules §§ 85-20-53 through 85-20-62 (2006), certain
documentation was required to support authorization for the medication beyond the prescribed
time limits. The Board of Review found that Dr. Kropac’s reports and the other evidence do not
provide the documentation necessary for the authorization of the medication Ultram.

        We agree with the Board of Review. Mr. Lowery is permanently and totally disabled as a
result of his compensable injuries. Dr. Carlson, his treating physician, continued to report that
Mr. Lowery needed the requested medications up until his practice closed. After the closure, Mr.
Lowery was in need of another physician. Mr. Lowery was referred to Dr. Kropac who also
opined he needed the requested medications. However, Dr. Scott believed that Mr. Lowery was
at his maximum degree of medical improvement and that any other medications were needed
because of his pre-existing degenerative disc disease. Dr. Kropac completely disagreed with Dr.
Scott’s analysis. He noted that degenerative disc disease was not seen on the MRI images. Dr.
Carlson and Dr. Kropac have consistent opinions and have far more evidence based upon their
exposure to Mr. Lowery’s condition, its development, and his treatment. Dr. Scott only examined
Mr. Lowery on a single occasion. Because the weight of the evidence indicates Mr. Lowery
needs the requested medications, the Board of Review was not in error for overturning the Office
of Judges’ Order.

        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: February 4, 2016

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