Genesis Healthcare Corporation v. D.N.

FILED
January 23, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
GENESIS HEALTHCARE CORPORATION,
Employer Below, Petitioner
vs.) No. 21-0500 (BOR Appeal No. 2056180)
(Claim No. 2012031937)
D. N.,
Claimant Below, Respondent
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:
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Consistent with our practice in cases with sensitive facts, we use initials where necessary
to protect the identities of those involved in this case. See Rule 40 of the Rules of Appellate
Procedure.
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(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
(4th 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.
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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
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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 feelings of fatigue. She
also reported irritability, concentration difficulties, and feelings of worthlessness. In an Office
Report dated December 12, 2017, Dr. Jafary reported that D. N. expressed feelings of sadness,
depression, and anxiety and that she did not have a desire to do anything. Dr. Jafary noted that all
of D. N.’s symptoms started after her head injury and that she had no previous mood disorder. As
a result, he diagnosed generalized anxiety disorder and major depressive disorder, recurrent mild.
Dr. Jafary continued to treat D. N., and he consistently diagnosed her with generalized anxiety
disorder and major depressive disorder.
On November 8, 2019, Dr. Jafary completed a Diagnosis Update form requesting that
major depressive disorder and generalized anxiety disorder be added as compensable conditions
in the claim. In an Order dated December 4, 2019, the claims administrator denied the request to
add major depressive disorder and generalized anxiety disorder to the claim. D. N. protested the
claims administrator’s Order.
In support of her protest, D. N. was deposed on April 1, 2020, where she testified about the
nature of her condition. She testified that as a consequence of her injury she has nummular
headaches, which is a constant headache. D. N. described the symptoms from her nummular
headaches as:
It is like a throbbing sensation in the top of my head. I have a lot of symptoms like
that. I have, like, a lot of burning in my forehead area. I have like, cutting, like,
somebody taking the tip of a knife and just cutting my face. I have a lot of numbness
and tingling in my facial area also.
D. N. explained the stress and strain resulting from her chronic condition and her belief that her
depression and anxiety are related to her chronic compensable condition.
West Virginia Code of State Rules § 85-20-12.4 addresses psychiatric compensability for
workers’ compensation claims:
12.4. Compensability. Services may be approved to treat psychiatric problems only
if they are a direct result of a compensable injury. As a prerequisite to coverage,
the treating physician of record must send the injured worker for a consultation with
a psychiatrist who shall examine the injured worker to determine 1) if a psychiatric
problem exists; 2) whether the problem is directly related to the compensable
condition; and 3) if so, the specific facts, circumstances, and other authorities relied
upon to determine the causal relationship. The psychiatrist shall provide this
information, and all other information required in section 8.1 of this Rule in his or
her report. Failure to provide this information shall result in the denial of the
additional psychiatric diagnosis. Based on that report, the Commission, Insurance
Commissioner, private carrier or self-insured employer, whichever is applicable,
will make a determination, in its sole discretion, whether the psychiatric condition
is a consequence that flows directly from the compensable injury.
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a. A Diagnosis Update Form WC-214 must be attached to the treating
physician’s report in order to request the psychiatric condition be added as an
approved diagnosis.
Throughout D. N.’s medical record, various treating physicians and examiners have noted that she
presents as being depressed and anxious. As a result, D. N. argued before the Office of Judges that
major depressive disorder and generalized anxiety disorder, as diagnosed by Dr. Jafary, should be
added as compensable components in her claim.
The Office of Judges found that D. N. has established by a preponderance of the evidence
that she is entitled to the addition of major depressive disorder and generalized anxiety disorder as
compensable components to the claim. The Office of Judges determined that, as a result of her
compensable injury of February 2, 2012, she suffers from nummular headaches in the V1
distribution of the trigeminal nerve bilaterally. As a result, she experiences substantial pain at the
top/front of her head, down to her forehead, and into her face. It was noted that D. N. had no
psychiatric treatment history prior to her compensable injury. The Office of Judges reversed the
claims administrator’s Order dated December 4, 2019, which denied the request from Dr. Jafary
to add major depressive disorder and generalized anxiety disorder as compensable conditions in
the claim. The Board of Review adopted the findings and conclusions of the Office of Judges and
affirmed the final decision on May 20, 2021.
On appeal before this Court, Genesis Healthcare Corporation argues that instead of
applying the compensability criteria set forth in Hale v. West Virginia Office of the Insurance
Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012), the Office of Judges found that the
medical records of Dr. Jafary meet the criteria set forth in West Virginia Code of State Rules § 85-
20-12.4. 2 Genesis claims that, in doing so, the Office of Judges erred by circumventing and
defeating the purpose of the rule, while allowing compensability to be determined under a
preponderance of the evidence standard after the submission of additional evidence. The
Petitioner, Genesis, contends that the very existence of § 85-20-12.4 exemplifies that the
determination of the compensability of psychiatric conditions is more complicated than it is for
physical injuries, and the claims administrator is entitled to be “aided by” that report in
investigating the request to add conditions and determining compensability. Genesis also argues
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In Hale, this Court held that West Virginia Code of State Rules § 85-20-12.4 sets forth a
three-step process that must be followed when a claimant is seeking to add a psychiatric disorder
as a compensable injury in his/her workers’ compensation claim: (1) the claimant’s treating
physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial
psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure
described in W. Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the
psychiatrist's report, is to determine whether the psychiatric condition should be added as a
compensable injury in the claim.
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that the report must provide all of the information required under § 85-20-8.1 3 and that D. N. did
not comply with the requirements for the addition of psychiatric conditions to the claim, so the
claim should be remanded to the claims administrator.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1, employees who
receive injuries in the course of and as a result of their covered employment are entitled to benefits.
For an injury to be compensable, it must be a personal injury that was received in the course of
employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp.
Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). The Office of Judges and Board of Review
agreed that Dr. Jafary provided the required information to the claims administrator, including the
conditions diagnosed, the relationship to the compensable injury, the proposed treatment, and
whether D. N. had returned to work. In fact, Dr. Jafary provided years of treatment notes as well
as a Diagnosis Update form and testified regarding the issue of compensability. The Board of
Review’s decision is supported by the evidence within the record.
Affirmed.
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West Virginia Code of State Rules § 85-20-8.1, provides that the following information
must be included in the medical provider’s report to the claims administrator for the consideration
of treatment of psychiatric conditions:
a. The condition(s) diagnosed including ICD-9-CM codes and the objective
and subjective findings.
b. Their relationship, if any, to the industrial injury or exposure.
c. Outline of proposed treatment program, its length, components, and
expected prognosis including an estimate of when treatment should be concluded
and condition(s) stable. An estimated return to work date should be included. The
probability, if any, of permanent partial disability resulting from industrial
conditions should be noted.
d. If the worker has not returned to work, the attending doctor should
indicate whether a vocational assessment will be necessary to evaluate the worker’s
ability to return to work and why.
e. If the worker has not returned to work, a doctor’s estimate of physical
and functional capacities should be included with the report. If further information
regarding physical and functional capacities is needed or required, a performance-
based functional capacity evaluation can be requested. Functional capacity
evaluations shall be conducted by a licensed health care provider approved by the
Commission, Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, to perform this testing.
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ISSUED: January 23, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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