                                    STATE OF WEST VIRGINIA

                                                                                                 FILED
                                 SUPREME COURT OF APPEALS                                      July 15, 2013
                                                                                          RORY L. PERRY II, CLERK
                                                                                        SUPREME COURT OF APPEALS
EDWARD D. BIRCH,                                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)       No. 11-1361 (BOR Appeal No. 2045543)
                       (Claim No. 2004040678)

SWVA, INC.,

Employer Below, Respondent



                                    MEMORANDUM DECISION
       Petitioner Edward D. Birch, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by H. Toney Stroud1, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 1, 2011, in
which the Board reversed a January 20, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s July 9, 2010,
decision denying a request for authorization of the medication Lortab. 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. Birch was working for SWVA, Inc. when he injured his back while at work on
March 9, 2004. On July 9, 2010, the claims administrator denied a request from Dr. Caraway for
authorization of the medication Lortab. The Office of Judges reversed the claims administrator’s
decision, and held that the preponderance of the evidence established that the requested medical
benefits were medically related and reasonably required treatment for the compensable injury.

1
    On February 11, 2013, this Court received notification that SWVA, Inc. is now represented by Steven Wellman.
                                                            1
        The Board of Review reversed the Office of Judges’ Order, and reinstated the claims
administrator’s decision denying authorization for the medication Lortab. On appeal, Mr. Birch
argues that West Virginia Code of State Rules § 85-20-53.14 (2006) is only a guideline, and that
the evidence he provided including two failed back surgeries, failed spinal injections, and
intrathecal pain pump demonstrate that the use of Lortab outside the guidelines is justified.
SWVA, Inc. maintains that the evidence provided does not establish that treatment outside of the
guidelines is justified.

        The Board of Review held that the record lacked the documentation necessary to
establish that the medication Lortab was medically necessary and reasonably required in the
treatment of the compensable injury of March 9, 2004. Under West Virginia Code of State Rules
§ 85-20-53.14 “Schedule III drugs should be prescribed on an outpatient basis for no longer than
six weeks after initial injury or following a subsequent operative procedure.” The Board of
Review noted that Mr. Birch last had surgery on his back in 2005. Further, it noted that Dr.
Caraway’s documentation did not provide specific detailed information to justify treatment
outside the guidelines. Thus, the Board of Review concluded that the authorization for the
medication Lortab should be denied, and reversed the Office of Judges’ Order. 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: July 15, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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