STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 27, 2014 

RORY L. PERRY II, CLERK 

SAMUEL J. PERRY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0339 (BOR Appeal No. 2047812) 

(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 October 2, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 24, 2012, 

decision denying additional psychotherapy. 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 worked for SWVA, Inc., on July 19, 2007, when he was trapped and burned by 

a flash fire. Mr. Perry’s submitted a workers’ compensation application which was subsequently 

held compensable. Mr. Perry also experienced a psychiatric sequela as a result of his injury. He 

was examined by Bobby Miller, M.D. Dr. Miller diagnosed post-traumatic stress disorder and 

prescribed medication. At the first examination Dr. Miller opined that Mr. Perry would need the 

medication for one year. Mr. Perry reported back to Dr. Miller several times. Dr. Miller 

performed various tests on Mr. Perry. At the conclusion of the testing, Dr. Miller found that Mr. 

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Perry had improved in the area of his mood disorder but had psychiatric problems unrelated to 

his compensable injury. The Office of Judges examined Dr. Miller’s report and determined it 

was credible. The only evidence Mr. Perry offered was a request for psychotherapy from 

Michael A. Goldman, LPC, who was identified by Mr. Perry to be his psychotherapist. Mr. 

Goldman’s request was not accompanied by any report or explanation regarding the additional 

treatment. 

The Office of Judges then weighed Dr. Miller’s well-reasoned report against Dr. 

Goldman’s conclusory comment that Mr. Perry should undergo psychotherapy. The Office of 

Judges concluded that Dr. Miller’s report was more credible and supported by the evidence. The 

Office of Judges affirmed the claims administrator’s decision to deny the psychotherapy 

treatment. The Board of Review adopted the findings and conclusion of the Office of Judges and 

affirmed. 

We agree with the findings of the Office of Judges and the conclusions of the Board of 

Review. Mr. Perry has failed to establish by a preponderance of the evidence that further 

psychotherapy is reasonably necessary to treat his compensable condition. The credible and wellreasoned report of Dr. Miller shows that Mr. Perry has reached his maximum degree of medical 

improvement and no longer needs therapy for his compensable condition of 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 

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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