STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 14, 2013 

RORY L. PERRY II, CLERK 

ROGER J. SPENCER, 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-0017 (BOR Appeal No. 2046087) 

(Claim No. 960053955) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

HOBET MINING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Roger J. Spencer, by Steven M. Thorne, his attorney, appeals the decision of 

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

Insurance Commissioner, by Jack M. Rife, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 7, 2011, in 

which the Board affirmed a June 17, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 25, 2011, 

Order denying authorization for Fentanyl Transdermal Patches. 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. Spencer sustained a compensable lumbosacral strain on June 3, 1996, while working 

for Hobet Mining, Inc. On January 20, 2011, Mr. Spencer requested authorization for Fentanyl 

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Transdermal Patches. On January 25, 2011, the claims administrator denied authorization 

pursuant to West Virginia Code of State Rules § 85-20-53.14 (a) (2006). 

The Office of Judges determined that the preponderance of the evidence established that 

Fentanyl Transdermal Patches are not medically necessary and reasonably required in the course 

of treatment for Mr. Spencer’s compensable injury. Mr. Spencer appealed and argues that the 

preponderance of the evidence shows that his case is extraordinary and that Fentanyl 

Transdermal Patches are reasonably necessary as medical treatment for his compensable injury. 

The West Virginia Office of Insurance Commissioner argues that the medical evidence failed to 

establish that Mr. Spencer was entitled to authorization for the controlled substance. On January 

20, 2011, Dr. Deer submitted a one page handwritten request for authorization for Fentanyl 

Transdermal Patches. The request contained no details or explanation as to why a Schedule II 

medication was being requested. 

The Office of Judges found that Dr. Deer’s request and the medical records from the 

Center for Pain Control do not provide the documentation necessary for authorization of 

Fentanyl Transdermal Patches, nearly fifteen years after the compensable injury occurred. The 

Office of Judges noted that Dr. Deer’s request dated January of 2011 for authorization for 

Fentanyl Transdermal Patches consisted of a one page handwritten form request and contained 

no explanation for the request. The Office of Judges further noted that the only evidence Mr. 

Spencer submitted was treatment records from The Center for Pain Relief for treatment of 

numerous conditions. The Office of Judges found it unclear which of the conditions and 

treatments referred to in these records have been authorized under the instant claim. The Office 

of Judges noted the records submitted by The Center for Pain Relief were no different from April 

17, 2002, to June 14, 2007, than those that were reviewed during the litigation of the claims 

administrator’s April 23, 2007, Order, which previously denied Duragesic and Oxycodone. The 

Office of Judges determined that the preponderance of the evidence established that Fentanyl is 

not medically necessary and reasonably required in the course of treatment for Mr. Spencer’s 

compensable injury. The Board of Review reached the same reasoned conclusions. 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: November 14, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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