Murray American Energy, Inc. v. Benjamin Parsons

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MURRAY AMERICAN ENERGY, INC., FILED
Employer Below, Petitioner January 20, 2021
EDYTHE NASH GAISER, CLERK
vs.) No. 19-1062 (BOR Appeal No. 2054299) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2018016156)
BENJAMIN PARSONS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc., by Counsel Denise D. Pentino and Aimee M.
Stern, appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board
of Review”). Benjamin Parsons, by Counsel Robert L. Stultz, filed a timely response.
The issues on appeal are temporary total disability benefits and medical benefits. The
claims administrator closed the claim for temporary total disability benefits on July 2, 2018. In
two separate Orders dated July 5, 2018, the claims administrator denied authorization for an
evaluation by a neurologist and denied retroactive authorization for neuropsychological testing.
The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims
administrator’s decisions insofar as it denied an evaluation by a neurologist and affirmed the
remainder of the claims administrator’s decisions in its May 24, 2019, Order. The Order was
affirmed by the Board of Review on October 21, 2019.
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.
Mr. Parsons, a coal miner, was injured in the course of his employment on January 12,
2018, when he was struck in the head by a falling rock. Treatment notes from Wheeling Hospital
Emergency Department that day indicate Mr. Parsons was struck in the head by a rock in the coal
mine. He reported pain in the top of his head and in his right shoulder. Mr. Parsons denied neck
pain, numbness, and tingling. The Employees’ and Physician’s Report of Injury was completed on
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January 12, 2018, and indicated Mr. Parsons injured his head, neck, and back when he was struck
in the head by a rock. The physicians’ section was completed at Wheeling Hospital Emergency
Department and listed the diagnoses as cervical strain and muscle spasms.
Mr. Parsons sought treatment from Ross Tennant, FNP, on January 16, 2018, where he
reported headaches and dizziness as well as muscles spasms in his neck. Mr. Tennant diagnosed
closed head injury, post-concussion syndrome, and cervical strain. Mr. Parsons was unable to
work. On January 23, 2018, Mr. Parsons reported significant symptom improvement. His cervical
pain and dizziness had completely resolved. Mr. Parsons requested to be released to return to work.
Mr. Tennant stated that Mr. Parsons could return to work on January 24, 2018. The claim was held
compensable for neck strain and unspecified head/face injury on January 26, 2018. Mr. Parsons
was granted temporary total disability benefits from January 13, 2018, through January 23, 2018.
Mr. Parsons has a history of neck pain, back pain, and muscle spasms. On April 27, 2015,
he was treated at Wheeling Hospital Physical Therapy for pain in the neck, right shoulder, left
elbow, and right elbow. It was noted that there was no work-related injury involved. Mr. Parsons
had previously been treated for the problems with corticosteroids. He was diagnosed with neck
pain, left elbow pain, right elbow pain, and right shoulder pain.
On May 18, 2016, Vic Wood, D.O., indicated Mr. Parsons was seen for medication refill
for the chronic conditions of lower back and neck pain due to a motorcycle accident that occurred
years prior. He was diagnosed with chronic lower back pain, neck pain, anxiety, depression, and
muscle spasms. A brain CT scan was performed on August 6, 2016, for dizziness and weakness.
The results were normal.
Mr. Parsons was seen for the injury at issue on July 30, 2018, at Wheeling Hospital
Emergency Room where he reported neck stiffness, dizziness, and headaches since his January 12,
2018, injury. Mr. Parsons stated that the headaches may be the result of breathing coal dust at
work. A brain CT scan showed left frontal sinusitis. A cervical CT scan showed a soft tissue injury.
Mr. Parsons was diagnosed with sinusitis, otitis media, muscle pain, and muscle spasms.
A February 1, 2018, treatment note by Mr. Tennant indicates Mr. Parsons reported muscle
spasms in his neck and low back since returning to work on January 23, 2018. He stated that he
was performing frequent shoveling. Mr. Tennant diagnosed closed head injury, post-concussive
syndrome, cervical strain, and lumbar strain. Mr. Parsons’s was to resume physical therapy and
could not return to work. Mr. Parsons returned on February 22, 2018, and reported that physical
therapy resolved his lumbar pain. His cervical spine pain, however, had worsened. The diagnoses
remained the same. Mr. Parsons was unable to return to work. A cervical MRI performed on
February 27, 2018, was unremarkable.
Alicia Puskar, PsyD, performed an evaluation on March 26, 2018, in which Mr. Parsons
reported headache, dizziness, light sensitivity, memory difficulties, trouble concentrating, and
irritability. Dr. Puskar opined that Mr. Parsons sustained a cerebral concussion on January 12,
2018. She found that vestibular-ocular motor testing showed patterns of provoked dizziness. Dr.
Puskar recommended vestibular therapy evaluation. Mr. Parsons was able to return to light-duty
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work. On April 23, 2018, Mr. Parsons reported headaches, fatigue, dizziness, balance problems,
light and noise sensitivity, trouble with concentration, memory issues, anxiety, and sleep issues.
Mr. Parsons further reported that he could not return to work and that he was having problems
with his union. Dr. Puskar stated that Mr. Parsons could return to above ground work only. She
stated that rest would not help Mr. Parsons and that he needed to increase his activities.
On May 16, 2018, Bill Hennessey, M.D., performed an independent medical evaluation in
which he noted the compensable conditions as cervical sprain and head contusion. Dr. Hennessey
noted that surveillance of Mr. Parsons taken in April of 2018 showed him raking, carrying a pipe,
dumping dirt from a wheelbarrow, shoveling stone, carrying fishing poles, and digging a trench.
On examination, Dr. Hennessey found full cervical range of motion with pain on the end range
lateral rotation to his left side. Mr. Parsons had reached maximum medical improvement for the
compensable conditions. Dr. Hennessey recommended no further treatment and found no residual
permanent impairment.
Cervical x-rays were performed on May 21, 2018, for cervical pain but showed no
abnormal findings. In a May 25, 2018, treatment note, Mr. Tennant noted that Mr. Parsons was
seen for posttraumatic concussion symptoms and neck pain. Mr. Parsons reported that his biggest
problems were headaches and vision changes. Mr. Tennant diagnosed persistent complaints of
headache and post-traumatic concussion symptoms and cervicalgia.
In a June 6, 2018, treatment note, Ms. Puskar noted Mr. Parsons’s symptoms as headache;
dizziness; nausea; fatigue; light and noise sensitivity; issues with balance, concentration, memory,
attention, and cognition; anxiety; irritability; and depression. Neurocognitive testing showed
worsening symptoms. Mr. Parsons’s was referred to neurology. Mr. Parsons’s was allowed to
perform above ground work only.
A June 27, 2018, treatment note by Victoria Kochick, PT, indicates Mr. Parsons’s
movements were self-limiting on examination. On July 24, 2018, Mr. Parsons reported that he
drove ten hours to the beach and back, swam, and did a flip into the water. It was noted that Mr.
Parsons did not participate in home physical therapy and that he had not followed behavior
regulation suggestions.
The claims administrator closed the claim for temporary total disability benefits on July 2,
2018. On July 5, 2018, in two separate decisions, the claims administrator denied authorization for
an evaluation by a neurologist and denied retroactive authorization for neuropsychological testing.
Mr. Parsons returned to Dr. Puskar on July 10, 2018, and admitted to not following
recommendations to increase his activity. Dr. Puskar strongly advised him to return to his normal
activities and supported any above ground work. On July 12, 2018, Mr. Parsons reported constant
headaches, facial numbness, muscle spasms in his neck, blurred vision, fatigue, dizziness, and
nausea to Mr. Tennant. The impression was closed head injury, post-concussive syndrome,
cervical strain, and lumbar strain. On August 9, 2018, Mr. Parsons reported that trigger injections
resolved his facial numbness. Mr. Tennant opined that Mr. Parsons could perform light-duty,
above ground work only.
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On September 12, 2018, Dr. Puskar opined that Mr. Parsons could return to full duty work
on September 17, 2018. Mr. Parsons was seen on September 17, 2018, at Corporate Health. It was
noted that Mr. Parsons had been released to return to full-duty work with no restrictions. Mr.
Parsons reported that his symptoms had resolved and that he had been increasing his activities.
Mr. Parsons testified in a March 5, 2019, deposition that he had been under the care of a
concussion specialist, a neurologist, and a physical therapist for six months. Mr. Parsons stated
that he returned to work on January 24, 2018, for four or five days, but his symptoms worsened.
He stopped working on January 30, 2018, and did not return for eight or nine months. He has since
been released to return to full duty work. Mr. Parsons testified that he still has migraines. He denied
any preexisting issues. Mr. Parsons stated that his symptoms prevented him from returning to work
on January 14, 2018. His symptoms continued after he stopped receiving temporary total disability
benefits on May 23, 2018. His symptoms improved, and he was able to return to full duty work in
September of 2018.
The Office of Judges reversed the claims administrator insofar as it denied an evaluation
by a neurologist and affirmed the remainder of the claims administrator’s decisions closing the
claim for temporary total disability benefits and denying a neurological evaluation in its May 24,
2019, Order. The Office of Judges found that temporary total disability benefits were suspended
based on Dr. Hennessey’s May 16, 2018, independent medical evaluation in which he found that
Mr. Parsons had reached maximum medical improvement. The Office of Judges found that on
June 6, 2018, Dr. Puskar stated in a treatment note that Mr. Parsons could return to above ground
work. She further opined on July 10, 2018, that Mr. Parsons needed consistent, demanding work.
She released Mr. Parsons to return to full-duty work on September 12, 2018. The Office of Judges
found Dr. Hennessey’s finding that Mr. Parsons had reached maximum medical improvement for
the compensable conditions to be persuasive and further determined that Mr. Parsons’s return to
work was supported by his treating physician, Dr. Puskar.
Regarding the requested medical treatment, the Office of Judges found that the claims
administrator denied an evaluation with a neurologist because Dr. Hennessey opined that Mr.
Parsons required no further treatment and that he was not receiving treatment at that time. The
Office of Judges found, however, that the opinion of Dr. Puskar was more persuasive. Dr. Puskar
is a psychologist, and neuropsychological testing showed worsening of Mr. Parsons’s symptoms
and declined neurocognitive scores. Dr. Puskar opined that Mr. Parsons may be suffering from
post-traumatic migraines and recommended referral to neurology for assessment. Mr. Parsons
underwent such testing on July 10, 2018, and it showed continuing issues related to depression and
post-traumatic migraines. The Office of Judges determined that though Dr. Hennessey found Mr.
Parsons to be at maximum medical improvement, Dr. Puskar found that he required an evaluation
by a neurologist. It therefore reversed the claims administrator’s denial of an evaluation of a
neurologist and authorized the treatment.
Lastly, the Office of Judges found that the request for neuropsychological testing was
properly denied. It found that the claims administrator denied the request by statute. Pursuant to
West Virginia Code of State Rules § 85-20-9.10, psychiatric treatment beyond an initial
consultation requires prior review and authorization. Neuropsychological testing, as requested by
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Mr. Parsons, therefore requires preauthorization, which was not obtained. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order
on October 21, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The claim was properly closed for temporary total disability
benefits because Mr. Parsons was released to return to work. He was also found to be at maximum
medical improvement. Authorization of a referral to a neurologist was properly authorized as it
was found to be medically related and reasonable required treatment for the compensable injury.
Lastly, retroactive authorization of neuropsychological testing was properly denied by statute.
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.
ISSUED: January 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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