Veronica Myles v. West Virginia United Health System

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
VERONICA MYLES, FILED
Claimant Below, Petitioner November 1, 2019
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 18-0947 (BOR Appeal No. 2052941) OF WEST VIRGINIA
(Claim No. 2009074390)
WEST VIRGINIA UNITED HEALTH SYSTEM
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Veronica Myles, by Counsel J. Thomas Greene Jr., appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). West Virginia
United Health System, by Counsel Lisa Warner Hunter, filed a timely response.
The issue on appeal is the reopening of the claim on a permanent partial disability basis.
On July 19, 2016, the claims administrator denied reopening of the claim. The Workers
Compensation Office of Judges (“Office of Judges”), reversed the claims administrator’s decision
and reopened the claim on a permanent partial disability basis by Order dated May 11, 2018. This
appeal arises from the Board of Review’s Order dated September 26, 2018, in which the Board of
Review reversed and vacated the decision of the Office of Judges. The Board of Review
determined that Ms. Myles is not entitled to reopening of her claim on a permanent partial
disability basis. 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.
Ms. Myles sustained an injury at work on January 11, 2009, when she was struck in the
face with a telemetry unit by a patient. As a result of the injury, she developed headaches. She was
treated by Lori Stahara, PA-C, for her symptoms on June 17, 2011. She was eventually diagnosed
with chronic post-traumatic headaches.
1
On August 11, 2011, Ms. Myles was examined by Prasadarao B. Mukkamala, M.D., for an
independent medical evaluation. Dr. Mukkamala diagnosed her with a contusion of the face, scalp
and neck. He opined that she reached maximum medical improvement and concluded that she
could and should have returned to work by January 31, 2009. Dr. Mukkamala further concluded
that she does not require any additional treatment except for palliative medical management, which
includes the medical management of her headaches. For her headaches resulting from the
compensable injury, Dr. Mukkamala recommended 3% whole person impairment. By Order dated
September 12, 2011, the claims administrator granted Ms. Myles a 3% permanent partial disability
award based upon Dr. Mukkamala’s report. Although Ms. Myles protested the claims
administrator’s decision, the Office of Judges affirmed the 3% award on September 27, 2012, and
found that she was not entitled to a greater permanent partial disability award.
Ms. Myles underwent an independent medical evaluation by Karl C. Boone, D.C., on
March 31, 2016. Dr. Boone diagnosed post-traumatic headaches and chronic migraines without
aura. He noted that Ms. Myles previously received a 3% permanent partial disability award for her
persistent headaches. Dr. Boone did not believe that her cervical spine complaints were seriously
addressed in the record. He noted that a cervical spine MRI showed some degree of cervical disc
involvement. Dr. Boone stated that there was sufficient force to injure Ms. Myles’s cervical spine
either from blunt trauma to the head or the subsequent fall to the floor. He recommended physical
therapy with hopes of improving her headache patterns and to wean her off of some of her
medications. On April 8, 2016, Ms. Myles requested to reopen her claim for permanent partial
disability benefits.
Ms. Myles was once again referred to Dr. Mukkamala for an independent medical
evaluation, which was conducted on May 18, 2016. Dr. Mukkamala noted that he had previously
examined Ms. Myles and concluded that she had reached her maximum degree of medical
improvement with 3% whole person impairment for her compensable injury and post-traumatic
headaches. Dr. Mukkamala opined that she did not have any additional impairment that was
causally related to the compensable injury. He noted that her headaches are multifactorial with
relation to causation. Initially, the headaches were at least partially related to the compensable
injury. However, Dr. Mukkamala opined that the current symptoms and headaches are mostly
causally related to noncompensable issues such as cervical spondylosis. Dr. Mukkamala stated that
it is possible that cervical spondylosis contributes to headaches; however, he noted that her cervical
spondylosis is naturally occurring and not causally related to the compensable injury. The claims
administrator issued an Order on July 19, 2016, granting no additional permanent partial disability
award based upon the independent medical evaluation by Dr. Mukkamala. Ms. Myles protested
the claims administrator’s decision and argued that her claim should have been reopened.
For purposes of obtaining a reopening of a workers’ compensation claim under the
provisions of West Virginia Code § 23-5-1a and § 23-5-1b, a claimant must show a prima facie
cause, which means nothing more than any evidence which would tend to justify, but not compel,
the inference that there has been a progression or aggravation of the former injury. Harper v. State
Workmen’s Compensation Comm’r, 160 W. Va. 364, 364, 234 S.E.2d 779, 783 (1977). Where an
injured employee makes application in writing for further adjustment to the claim, and the
application discloses facts not theretofore considered by the commissioner, and which if true,
2
would entitle the claimant to further benefits, the claimant is entitled to have the claim reopened,
and to have a determination of the matters alleged in the application. Bostic v. State Compensation
Comm’r, 142 W. Va. 484, 96 S.E.2d 481 (1957).
The Office of Judges found that the March 31, 2016, report from Dr. Boone establishes a
fact not previously considered in the claim. Dr. Boone was of the opinion that, at the time of the
injury, there was sufficient force to injure the cervical spine, which could be a cause of Ms. Myles’s
headaches. The Office of Judges reversed the claims administrator’s July 19, 2016, denial of the
request to reopen the claim on a permanent partial disability basis. West Virginia United Health
System protested the decision.
The Board of Review reversed and vacated the Order of the Office of Judges dated May
11, 2018. The Board of Review found the Office of Judges’s analysis and conclusions to be clearly
wrong in light of the reliable, probative and substantial evidence on the whole record. The Board
of Review disagreed with the reasoning that the cervical spine issues are new facts that were not
previously considered because Dr. Mukkamala noted, in his report dated August 11, 2011, that he
found normal cervical range of motion, and no paracervical muscle spasm or tenderness. The
Board of Review also stated that Ms. Myles had been diagnosed with cervical spine tension
headaches, degenerative disc disease of the cervical spine, and cervicalgia, prior to the injury in
the claim. Given the evidence of record, the Board of Review concluded that Ms. Myles has not
met the test for reopening found in Bostic or Harper.
After review, we agree with the decision of the Board of Review. Although Dr. Boone
opined that there was sufficient force at the time of the injury to injure Ms. Myles’s cervical spine
and that her headaches could be the result of her cervical spine, the Board of Review did not
conclude that Ms. Myles met the test for reopening of her claim because cervical spine issues are
not new facts previously unconsidered. The Board of Review reasoned that Dr. Mukkamala
determined that Ms. Myles was fully compensated by her prior 3% permanent partial disability
award for headaches and her cervical spondylosis that Dr. Boone indicated might be contributing
to her was headaches was naturally occurring and not causally related to her compensable injury.
The Board of Review did not err in reversing the May 11, 2018, decision of the Office of Judges
because there is no evidence of record supporting additional impairment above the 3% permanent
partial disability award already granted in the claim.
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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.
Affirmed.
3
ISSUED: November 1, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
DISSENTING:
Justice Margaret L. Workman
4