T.E.C. v. M & G Polymerse U.S., LLC

• Decision Date: 22 September 2021
• Docket Number: 20-0388
• Court: Virginia Supreme Court
• Parties: T.E.C., Claimant Below, Petitioner v. M & G POLYMERSE USA, LLC, Employer Below, Respondent

T.E.C., Claimant Below, Petitioner v. M & G POLYMERSE USA, LLC, Employer Below, Respondent

No. 20-0388

Supreme Court of Appeals of West Virginia

September 22, 2021

BOR Appeal No. 2054911 Claim No. 2015019447

MEMORANDUM DECISION

Petitioner T.E.C., by Counsel Edwin H. Pancake, appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). M & G Polymers USA, LLC by Counsel Alyssa A. Sloan, filed a timely response.^[1]

The issue on appeal is additional compensable conditions. The claims administrator denied a request to add recurrent severe major depressive disorder; post-traumatic stress disorder; and generalized anxiety disorder to the claim in two separate decisions dated November 28, 2016, and April 4 2017. The Workers' Compensation Office of Judges ("Office of Judges") affirmed the decisions in its November 15, 2019, Order. The Order was affirmed by the Board of Review on May 21, 2020.

The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. 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 W.Va. Code § 23-5-15, in relevant part, as follows:

(b) 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[.]

(c) If the decision of the board represents an affirmation of a prior ruling by both the commission and 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 provision, is clearly the result of erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record. The court may not conduct a de novo re-weighing 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).

T.E.C., a maintenance worker was injured when a motor fell from a buggy and pinned his leg on January 14, 2015. A treatment note from St. Mary's Medical Center that day indicates T.E.C. injured his right third finger, right thigh, left shoulder, left thigh, left hand, and left foot. Right leg x-rays showed multiple femur fractures. T.E.C. was admitted to the hospital and underwent surgery the following day for severe segmental femur fracture. On January 16, 2015, T.E.C. underwent a second femur surgery. The claim was held compensable for left femur shaft fracture, left intertrochanteric femur fracture, and left shoulder abrasions on January 20, 2015. On March 2, 2015, the claim was held compensable for shoulder and upper arm abrasions and friction burn, hip crushing injury, closed intertrochanteric femur fracture, and closed femur shaft fracture. The claim was held compensable for left rotator cuff tear and impingement syndrome on May 15, 2015.

On March 17, 2016, T.E.C. underwent a Functional Capacity Evaluation in which it was found that T.E.C.'s pain, psychological questionnaire scores were high. This indicates pain and psychosocial issues like fear of pain/reinjury, high perceived level of disability, and a tendency to lose focus on pain could be contributing to T.E.C.'s disability.

In a September 19, 2016, treatment note, Mahija Kottapalli, M.D., noted that T.E.C. reported depression and anxiety that began immediately after his work-related injury. T.E.C. stated that he had suicidal thoughts, daily crying spells, obsessive thoughts, and insomnia. Dr. Kottapalli completed a Diagnosis Update requesting the addition of severe, recurrent major depressive disorder; post-traumatic stress disorder; and generalized anxiety disorder to the claim. He stated that T.E.C. was severely depressed and anxious with suicidal thoughts, flashbacks, and nightmares. T.E.C. was emotionally stable and healthy prior to the compensable injury. On November 28, 2016, the claims administrator denied the request to add recurrent, severe major depressive disorder; post-traumatic stress disorder; and generalized anxiety disorder to the claim.

Bobby Miller, M.D., performed an Independent Medical Evaluation on January 5, 2017, and prepared a report dated January 11, 2017, in which he noted that T.E.C. denied any prior mental health treatment. T.E.C. reported that prior to his injury he enjoyed a variety of activities but had not done those things since the injury. T.E.C. reported depression and anxiety. Dr. Miller performed a variety of testing and found evidence of malingering. Dr. Miller noted that T.E.C. scored extremely high on a malingering questionnaire. Dr. Miller diagnosed malingering but was unable to make any other diagnosis due to symptom magnification. During the evaluation, T.E.C. expressed suicidal thoughts, so Dr. Miller referred him to River Park Hospital.

On January 10, 2017, T.E.C. returned to Dr....