                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
DIANA S. WADE,                                                                   October 26, 2016
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 15-1048	 (BOR Appeal No. 2050391)
                    (Claim No. 2011024596)

OHIO VALLEY MEDICAL CENTER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Diana S. Wade, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Ohio Valley Medical Center, Inc.,
by Toni J. Glaeser, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 30, 2015, in
which the Board affirmed the April 8, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 8, 2014,
decision denying the addition of cervical sprain/strain and trapezius sprain/strain as compensable
conditions. 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. Wade, a registered nurse, was injured in the course of her employment on January
13, 2011, while lifting a patient. Her claim was held compensable for lumbosacral and thoracic
sprain/strain. Ms. Wade alleges she developed cervical pain shortly after the compensable injury.
She was thereafter diagnosed with cervical and trapezius sprains/strains and it was requested that
the conditions be added to the claim. On September 28, 2011, the claims administrator closed the
claim and determined there was no causal connection between the complaints of neck pain and
the compensable injury. This Court addressed the September 28, 2011, decision of the claims


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administrator in a previous memorandum decision.1 In that decision, the Court remanded the
claim with instructions that the claims administrator make a finding regarding the compensability
of the requested diagnoses of cervical sprain/strain and trapezius sprain/strain. On August 8,
2014, the claims administrator denied the addition of cervical sprain/strain and trapezius
sprain/strain as compensable conditions.

        Ms. Wade started treating with Michael Kovalick, M.D., an occupational medicine
doctor, on January 21, 2011. She generally was seen by Elizabeth Snyder, PA-C. Ms. Snyder’s
diagnoses were lumbar strain/sprain and thoracic strain/sprain. These remained the same until
July 31, 2011, when Ms. Snyder noted complaints of cervical spine pain. She also noted she was
going to request that this be accepted as a compensable diagnosis.

       Ms. Wade was evaluated for hypertension by Shawn Stern, D.O., her primary care
physician, on March 16, 2011. However, his medical records show he discussed the work injury
with Ms. Wade. Dr. Stern diagnosed thoracic back pain. On March 21, 2011, Samy Sakla, M.D.
saw Ms. Wade for a pain consultation. Dr. Sakla’s medical records show Ms. Wade described
her pain as a burning sensation in her mid-back. Dr. Sakla diagnosed lumbosacral sprain and
spasm of back muscles.

        Bill Hennessey, M.D., performed an independent medical evaluation on September 16,
2011. Ms. Wade denied ever having lumbar spine pain. She advised Dr. Hennessey that she had
bilateral posterior thoracic pain after the injury. This pain was at her bra strap line, just below the
shoulder blades. Ms. Wade also advised Dr. Hennessey that she had neck pain. However, she
was unsure when it started. In Dr. Hennessey’s opinion, Ms. Wade had a thoracic strain due to
the injury. He did not believe the cervical spine complaints were related to the injury.

        The Office of Judges affirmed the claims administrator’s decision in its April 8, 2015,
Order. The Office of Judges noted the medical records of Dr. Kovalick show that Ms. Wade did
not have ongoing medical treatment for the cervical spine until July 13, 2011. This was six
months after the injury. It also noted Dr. Kovalick advised the claims administrator on July 28,
2011, that he had reviewed Ms. Wade’s medical records and saw no mention of neck pain due to
the injury. The Office of Judges determined the medical records of Dr. Sakla are void of any
mention of neck pain due to the injury or a diagnosis of cervical spine strain/sprain. The Office
of Judges relied on the medical opinion of Dr. Hennessey in determining there was no causal
connection between the cervical spine complaints and the injury.

        On September 30, 2015, the Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges in affirming its Order. After review, we agree with the
reasoning of the Office of Judges and the conclusions of the Board of Review. While Ms. Wade
asserts she had neck pain the day of her injury and that she advised all of the physicians about
her neck pain, the medical records do not support her assertion. She told Dr. Hennessey she did

1
  See Wade v. Ohio Valley Med. Ctr., Inc., No. 13-0212 (June 27, 2014) (memorandum
decision).
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not know when her neck pain began. Additionally, her history to all of the physicians was
essentially the same, and she failed to provide a history of cervical spine pain.

        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 based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.



                                                                                        Affirmed.

ISSUED: October 26, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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