STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

August 13, 2014 

RORY L. PERRY II, CLERK 

RICHARD A. CARPER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0490	 (BOR Appeal No. 2047945) 

(Claim No. 2002044959) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

SYCAMORE CREEK INDUSTRIES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Richard A. Carper, by Steven Thorne, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the 

Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 24, 2013, in 

which the Board affirmed a November 16, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 5, 2012, 

decision denying Mr. Carper’s request for authorization of the medications Percocet and 

Diclofenac. 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. 

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Mr. Carper was injured on January 21, 2002, when he hit a pothole in the course of his 

employment as a truck driver, and the claim was held compensable for a cervical sprain/strain. 

Mr. Carper received pain management care from David Caraway, M.D., who noted that a 

cervical spine MRI revealed degenerative changes and herniated nucleus pulposi at C3-4, C4-5, 

and C6-7. He diagnosed Mr. Carper with a cervical sprain and brachial radiculitis, and treated 

him with Percocet and Diclofenac, among other medications. On February 22, 2011, Jerry Scott, 

M.D., performed an independent medical evaluation and found that Mr. Carper’s current 

complaints are typical of those reflecting a degenerative condition. He further found that Mr. 

Carper’s current treatment regimen appears generally directed at alleviating the symptoms 

associated with underlying degenerative changes. On January 5, 2012, the claims administrator 

denied Mr. Carper’s request for authorization of the medications Percocet and Diclofenac. 

In its Order affirming the claims administrator’s decision, the Office of Judges held that a 

preponderance of the evidence fails to demonstrate that the requested medications are medically 

necessary and reasonably required to treat the compensable injury. Mr. Carper disputes this 

finding and asserts that the evidence of record demonstrates that the requested medications are 

necessary for the treatment of his compensable injury. 

The Office of Judges found that authorization for the requested medications was 

previously denied by the claims administrator on June 28, 2011, based on Dr. Scott’s 

independent medical evaluation. The Office of Judges further found that it affirmed the claims 

administrator’s June 28, 2011, decision in an Order dated December 12, 2011. The Board of 

Review affirmed the December 12, 2011, Order of the Office of Judges on July 12, 2012, and 

this Court affirmed the Board of Review’s July 12, 2012, Order on March 18, 2014. 

The Office of Judges found that its prior December 12, 2011, denial of authorization for 

Percocet and Diclofenac forms the basis for its denial of authorization for the requested 

medications in the instant appeal. The Office of Judges noted that in the instant appeal, Mr. 

Carper has merely provided additional treatment notes from Dr. Caraway. However, the Office 

of Judges found that these treatment notes contain no additional information that sets the instant 

request for authorization of Percocet and Dicolfenac apart from the request for authorization of 

these medications that was previously denied. Further, the Office of Judges found that Dr. 

Caraway’s treatment notes provide no information as to why the use of the requested 

medications would now be justified in the treatment of the compensable injury. Finally, as in its 

prior decision, the Office of Judges relied on Dr. Scott’s finding that Mr. Carper’s current 

complaints arise from degenerative changes and not from the compensable injury. The Board of 

Review reached the same reasoned conclusions in its decision of April 24, 2013. 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. 

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Affirmed. 

ISSUED: August 13, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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