STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 24, 2013 

RORY L. PERRY II, CLERK 

TERRY E. LILLY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-1526	 (BOR Appeal No. 2045915) 

(Claim No. 2007211465) 

KINGSTON MINING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Terry E. Lilly, by Reginald D. Henry, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Kingston Mining, Inc., by Marion E. 

Ray, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated October 13, 2011, in 

which the Board affirmed an April 29, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed a claims administrator’s October 4, 2010, 

decision denying authorization of the medications Serax and Trazodone. The Office of Judges 

also affirmed a claims administrator’s October 4, 2010, decision denying authorization for 

individual counseling sessions once per month. 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. Lilly was employed by Kingston Mining, Inc., on July 28, 2006, when a rock fell on 

him, trapping him underneath. The claims administrator held the claim compensable for multiple 

conditions. Mr. Lilly also received psychiatric treatment and services based on this injury, 

including treatment from Dr. Faheem. Dr. Faheem diagnosed Mr. Lilly with depressive disorder 

not otherwise specified and post-traumatic stress disorder. Dr. Faheem also reported that Mr. 

Lilly suffered from nightmares and panic attacks but that these symptoms had grown less 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

frequent. Dr. Faheem treated Mr. Lilly’s symptoms with Trazodone, Cymbalta, and Serax. Mr. 

Lilly also received individual counseling from Mr. Mink. On February 16, 2010, Dr. Weise 

performed an independent psychiatric evaluation on Mr. Lilly. Dr. Weise opined that it would 

not be beneficial for Mr. Lilly to continue to receive psychiatric counseling. He also 

recommended that Mr. Lilly’s use of Serax should be slowly tapered and withdrawn, and that 

Mr. Lilly’s use of Trazodone should be reduced but resumed if his symptoms were exacerbated. 

Based on Dr. Weise’s report, the claims administrator sent a notice letter to Dr. Faheem, 

dated April 2, 2010, requesting a detailed medical report that outlined his opinion of the weaning 

and tapering program suggested by Dr. Weise. The letter stated that if the report was not received 

by August 1, 2010, the claims administrator would implement the tapering program suggested by 

Dr. Weise. On July 28, 2010, the claims administrator issued a decision stating that the requested 

information had not been received. The decision further stated that Serax, Trazodone, and 

individual counseling would be approved until October 1, 2010, to allow for preparation and 

implementation of a wean and taper program. The decision was not protested but on September 

9, 2010, Dr. Faheem requested authorization for Serax, Trazodone, and individual counseling 

sessions. The claims administrator denied Dr. Faheem’s request in two separate decisions on 

October 4, 2010. The claims administrator’s decisions were affirmed by a joint Order of the 

Office of Judges on April 29, 2011. The Board of Review then affirmed the Order of the Office 

of Judges on October 13, 2011, leading Mr. Lilly to appeal. 

In its Order, the Office of Judges concluded that there was no error in the claims 

administrator’s denial of Dr. Faheem’s request for the medications, Serax and Trazodone, and 

individual psychiatric counseling. The Office of Judges determined that the claims 

administrator’s July 28, 2010, decision, which had authorized the requested medications and 

counseling sessions until October 1, 2010, to allow for weaning and tapering, was not protested. 

The Office of Judges determined that Dr. Faheem made no attempt to implement a weaning and 

tapering program, nor did he submit the requested detailed report to the claims administrator. 

The Office of Judges determined that the denial of the requested medications should be affirmed. 

Additionally, the Office of Judges concluded that the claims administrator’s denial of 

authorization for additional counseling sessions was appropriate. In making this determination 

the Office of Judges relied on an independent medical evaluation performed by Dr. Weise, on 

January 25, 2011, in which he repeated many of the findings he had made in his February 16, 

2010, report. Dr. Weise found that Mr. Lilly had reached the maximum degree of psychiatric 

improvement, that there were no changes in Mr. Lilly’s overall symptoms during the past year, 

and that Mr. Lilly had no further need of psychiatric counseling. The Board of Review adopted 

the findings of the Office of Judges and affirmed its Order on October 13, 2011. 

We agree with the conclusions of the Board of Review and the Office of Judges. The 

February 16, 2010, and January 25, 2011, reports of Dr. Weise, which the Office of Judges relied 

upon, demonstrated that Mr. Lilly’s use of Serax and Trazodone should be tapered. Dr. Weise’s 

reports also demonstrate that it was no longer beneficial for Mr. Lilly to receive individual 

psychiatric counseling in relation to this claim. The Office of Judges did not commit reversible 

error in relying on Dr. Weise’s reports. Finally, Mr. Lilly has not demonstrated that the requested 

medications and psychiatric counseling are medically related and reasonably necessary to treat 

his compensable injury. 
 

 

 

 

 

 

 

 

 

 

 

 

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 24, 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