Genesis Healthcare Corp. v. D. N.

• Decision Date: 23 January 2023
• Docket Number: 21-0500
• Parties: GENESIS HEALTHCARE CORPORATION, Employer Below, Petitioner v. D. N., Claimant Below, Respondent
• Court: West Virginia Supreme Court

GENESIS HEALTHCARE CORPORATION, Employer Below, Petitioner v. D. N., Claimant Below, Respondent

No. 21-0500

Supreme Court of Appeals of West Virginia

January 23, 2023

(BOR Appeal No. 2056180) (Claim No. 2012031937)

MEMORANDUM DECISION

Petitioner Genesis Healthcare Corporation, by counsel Daniel G. Murdock appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). D. N., by counsel Gregory S. Prudich, filed a timely response.^[1]

The issue on appeal is compensability. The claims administrator denied a request to add major depressive disorder and generalized anxiety disorder on December 4, 2019. On December 4, 2020, the Workers' Compensation Office of Judges ("Office of Judges") reversed the claims administrator's decision and added the conditions as compensable components of the claim. This appeal arises from the Board of Review's Order dated May 20, 2021, in which the Board affirmed the Order of the Office of Judges.

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.

The standard of review applicable to this Court's consideration of workers' compensation appeals has been set out under West Virginia Code § 23-5-15, in relevant part, as follows:

(c) In reviewing a decision of the Board of Review, the Supreme Court of Appeals shall consider the record provided by the board and give deference to the board's findings reasoning, and conclusions . . . .

(e) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning, and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo reweighing of the evidentiary record . . .

See Hammons v. W.Va. Off. of Ins. Comm'r, 235 W.Va. 577, 582-83, 775 S.E.2d 458, 463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the context of decisions issued by the Board. See also Davies v. W.Va. Off. of Ins. Comm'r, 227 W.Va. 330, 334, 708 S.E.2d 524, 528 (2011).

D. N., a nurse's aide, sustained an injury on February 2, 2012, when she struck her head on a television stand while picking a bag of trash off the floor. She was seen by Amanda Davis, PA-C, in the office of Barry K. Vaught, M.D., on February 15, 2012, for increased headaches related to her injury. Dr. Vaught had previously treated D. N. for migraine headaches.

D. N. underwent an Independent Medical Evaluation by Constantino Y. Amores, M.D., on August 6, 2013. D. N. reported that her headaches since the compensable injury were different than her regular migraine headaches. Dr. Amores noted that D. N. complained of paresthesia across the forehead, which was sensitive to touch and spread around both temples and the face. Dr. Amores opined that the current diagnoses and treatment were related to the compensable injury. Using the American Medical Association's Guides to the Evaluation of Permanent Impairment (4^th ed. 1993), Dr. Amores found 10% permanent impairment. On September 6, 2013, Dr. Amores issued an addendum to his report and indicated that he was aware of D. N.'s pre-injury headaches and migraines. Dr. Amores concluded that D. N.'s headaches, together with other neurological symptoms, are different from the preexisting headaches that she had previously reported.

D. N. underwent a neuropsychological evaluation by Maria T. Moran, Ph.D., of the West Virginia University Department of Behavioral Medicine on August 20, 2014. Dr. Moran could not attribute her cognitive deficits to her injury in February of 2012. Dr. Moran concluded, "D. N. is experiencing a significant degree of emotional distress related to her nerve symptoms, and treatment with psychoactive mediation to address her depression is recommended." A Positron Emission Tomography evaluation was recommended to help clarify the etiology of D.N.'s condition.

D. N. was seen at Active Rehab Services, Inc., on March 16, 2015, by Krystal Dale, DPT. Upon examination, Dr. Dale noted head and neck mobility deficits and pain/burning/tingling associated with muscular spasm and headaches following her injury at work. Dr. Dale opined that D. N.'s rehabilitation potential to achieve her functional goals was good.

On July 24, 2015, D. N. was seen by Sara King, APRN, NP-C, for a follow-up evaluation after receiving a bilateral supraorbital nerve block. D. N. reported that the injection did not help, and she still complained of pain in the forehead region with a burning feeling. The assessment was migraine headaches and supraorbital neuritis. Ms. King advised D. N. to seek blood pressure treatment before the administering of a second supraorbital nerve block.

On July 18, 2016, D. N. treated with Nancy Ellen Kelley, M.D., for an evaluation of her headaches. Dr. Kelley's assessment was intractable chronic migraine without aura and without status migrainosus and intractable chronic post-traumatic headache. Dr. Kelley noted that the latter was nummular in the V1 distribution of the trigeminal nerve bilaterally. D. N. was seen by Kelly Pitsenbarger, M.D., to treat her blood pressure. She reported that she had suffered a headache for weeks. Dr. Pitsenbarger noted that her blood pressure was not controlled, and she was not to work until she was seen by Dr. Kelley.

D. N. was evaluated by Dr. Amores on February 2, 2018, who concluded that her current complaints were in whole or in part related to the compensable injury of February 2, 2012. Dr. Amores also found that she was at maximum medical improvement; however, she was not able to return to work at the time of the evaluation. Dr. Amores stated, "[t]he claimant's physical and mental status from the compensable injury may put her and other people at risk." Dr. Amores opined that the treatment she had received had been reasonable and medically necessary to treat the compensable injury. He believed it was reasonable and necessary for D. N. to undergo further treatment by a multidisciplinary team of a neurologist, a pain and rehabilitation specialist, and a neuropsychologist for behavioral modification and cognitive therapy. In an Independent Medical Evaluation dated October 3, 2018, Dr. Amores diagnosed D. N. with nummular headaches and migraine headaches. Dr. Amores opined that it was impossible to make a prognosis regarding the permanency of the headaches. He stated that the headaches were treatable with medication and that D. N. would best be treated under the care of a headache specialist for her nummular headaches.

D. N. was seen at Beckley ARH Medical Mall by Georgianna Richards, M.D., on July 11, 2019, where she reported having mixed headaches since her 2012 accident. D. N. was diagnosed with trigeminal neuralgia and chronic migraine. On September 11, 2019, D. N. was seen by Timothy Watson, PA-C, for her chronic headache disorder. During the examination, D. N. reported aches, numbness, depression, and anxiety. She also stated that she was having tingling and burning in her toes and that the left-side of her body was worse. Mr. Watson assessed chronic headache disorder, trigeminal neuralgia, and hypertensive disorder.

As a consequence of her ongoing mental health conditions, D. N came under the care of Nick Jafary, M.D., of Beckley Psychiatric Services, who treated her from December 12, 2017, through January 17, 2020. During the course of his evaluations, D. N. expressed feelings of sadness, feelings of discouragement regarding her future, a loss of interest in pleasurable activities, an increase in crying, restlessness/agitation, loss of energy, and moderate...