                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
DANNY RAY REED,                                                                 October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1721 (BOR Appeal No. 2046001)
                   (Claim No. 2001031690)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

R & S COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Danny Ray Reed, by Gregory S. Prudich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Gary M. Mazezka, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 5, 2011, in
which the Board affirmed a May 26, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges modified the claims administrator’s November 23,
2010, decision denying authorization for 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.

       On December 6, 2000, Mr. Reed sustained an injury to his lower back while using a slate
bar in the course of his employment with R & S Coal, Company, Inc. The claim was held
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compensable for displacement of a lumbar intervertebral disc. On August 25, 2010, Dr. Shelton
recommended that Mr. Reed continue using Lortab, Flexeril, a TENS unit, and heat. On January
24, 2011, Dr. Grady concluded that Mr. Reed had reached maximum medical improvement and
recommended the avoidance of non-narcotic pain medication as per the Treatment Guidelines in
West Virginia Code of State Rules § 85-20 (2006). The claims administrator denied Mr. Reed’s
request for Lortab.

        The Office of Judges modified the claims administrator’s decision and granted the
authorization for Lortab on a weaning and tapering basis. On appeal, Mr. Reed disagrees and
asserts that the Board of Review erred in denying the medication Lortab, in not applying the
preponderance of the evidence standard instead of the “extraordinary” standard, and in allowing
Dr. Grady’s report into evidence even though he and his attorney were unaware it existed. The
West Virginia Office of Insurance Commissioner maintains that Mr. Reed has not submitted
evidence showing by a preponderance of the evidence that he is entitled to authorization for the
medication Lortab, but does not object to the Office of Judges’ Order of a weaning and tapering
program.

       The Office of Judges concluded that there was no specific medical report justifying a
sudden discontinuance of Lortab, but found that one physician recommended a weaning and
tapering program while another requested continuous use of Lortab. Dr. Grady recommended the
avoidance of non-narcotic pain medication, and stated that if long-term narcotic pain medication
was being discontinued, then an appropriate period of weaning would be needed. Dr. Shelton
requested that Mr. Reed continue using Lortab. In addition, Dr. Shelton did not provide sufficient
evidence on why the authorization of Lortab should be continued since the six weeks allowed for
Schedule III drugs in West Virginia Code of State Rules § 85-20-53.14(b) (2006) has expired.
The Office of Judges determined that Mr. Reed was allowed a weaning and tapering off period
under West Virginia Code of State Rules § 85-20-4.1 (2006), which allows for a deviation from
the Treatment Guidelines of West Virginia Code of State Rules § 85-20 for an extraordinary
circumstance. It concluded this was an extraordinary circumstance and that the claims
administrator’s decision is clearly against the preponderance of the evidence. The Board of
Review reached the same reasoned conclusions in its decision of December 5, 2011. 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: October 4, 2013

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




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