STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 15, 2013 

RORY L. PERRY II, CLERK 

EDWARD D. BIRCH, SUPREME COURT OF APPEALS 

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. 

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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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