                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                June 27, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SAMUEL J. PERRY,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0338 (BOR Appeal No. 2047624)
                    (Claim No. 2008002858)

SWVA, INC.,

Employer Below, Respondent



                              MEMORANDUM DECISION
         Petitioner Samuel J. Perry, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by Steven K. Wellman,
its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 4, 2013, in
which the Board affirmed an August 20, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 28, 2011,
decision denying authorization for the medications Remeron and Klonopin. 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. Perry, a maintenance worker for SWVA, Inc., injured himself on July 19, 2007,
when he was burned in a flash fire. Mr. Perry’s claim was held compensable. Thereafter, Mr.
Perry sought medical treatment from his family physician, Natavoot N. Chongswatdi, M.D.,
because he was experiencing flashbacks and depressive episodes. Dr. Chongswatdi prescribed
citalopram hydrobromide, clonazepam, and temazepam and requested that Mr. Perry see a
psychiatrist. Mr. Perry was examined by Bobby Miller, M.D., on November 27, 2007. Dr. Miller
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diagnosed post-traumatic stress disorder and prescribed Zoloft and Seroquel. Mr. Perry
submitted a request that post-traumatic stress disorder be added as a compensable condition.
Based on Dr. Miller’s opinion post-traumatic stress disorder was added as a compensable
condition of the claim. At the first psychiatric examination, Dr. Miller opined that Mr. Perry
would need medication for one year. Mr. Perry then reported to Ann H. Phenco, M.D., for
treatment on September 29, 2011. Based upon that examination Dr. Phenco sent in a request that
Remeron 30 mg and Klonopin 1mg be approved for Mr. Perry. Dr. Phenco’s request does not
contain and explanation of why the medications are necessary. The request also does not have an
addendum or accompanying report explaining the findings.

        The Office of Judges noted that Mr. Perry has reported to Dr. Miller on several occasions.
Dr. Miller performed various tests on Mr. Perry. At the conclusion of the testing, Dr. Miller
found that Mr. Perry had improved in the area of his mood disorder but had psychiatric problems
unrelated to his compensable injury. Dr. Miller’s report also directly addressed the issue of
whether Remeron and Klonopin are medically related and necessary to treat his compensable
condition. In Dr. Miller’s opinion neither drug was needed. Dr. Miller also opined that other
drugs would work better for Mr. Perry. Finally, Dr. Miller noted that cessation of Klonopin
would most likely have a beneficial effect on Mr. Perry, because it would help his sleep problem.
The Office of Judges weighed Dr. Phenco’s bare-bone request to Dr. Miller’s well-reasoned
independent medical examination and determined Dr. Miller’s report was more credible and
reliable. Accordingly the Office of Judges affirmed the claims administrator’s decision to deny
medical authorization for Remeron and Klonopin. The Board of Review adopted the findings of
the Office of Judges and affirmed its Order.

       We agree with the findings of the Office of Judges and the conclusion of the Board of
Review. Dr. Miller’s report is credible and well-reasoned. The only evidence that would tend to
show Mr. Perry should be taking Remeron and Klonopin is the request of Dr. Phenco. Dr.
Phenco did not provide any explanation for why the medications were necessary. Mr. Perry has
not submitted sufficient credible evidence to warrant a finding that Remeron and Klonopin are
medically necessary to treat Mr. Perry’s post-traumatic stress disorder.

        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: June 27, 2014




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




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