                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BLACKTOP INDUSTRIES,                                                           December 3, 2014
                                                                            RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA




vs.)   No. 13-1198 (BOR Appeal No. 2048345)
                    (Claim No. 2013003137)


ROBERT WOLFE,
Claimant Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Blacktop Industries, by T. Jonathan Cook, its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Robert Wolfe, by Lawrence B.
Lowry, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 31, 2013, in
which the Board reversed an April 9, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 18, 2012,
decision denying Mr. Wolfe’s request to add post-traumatic stress disorder as a compensable
condition. 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.

        Mr. Wolfe worked as a truck driver for Blacktop Industries. Mr. Wolfe was involved in a
two car motor vehicle accident when driving his asphalt truck. The driver of the other vehicle
died in the accident. Mr. Wolfe had abrasions on his back and shoulder from the accident. The
claim was held compensable for superficial injury of other multiple/unspecified sites. George
Mercado, M.D., diagnosed Mr. Wolfe with post-traumatic stress disorder related to his
occupational injury that occurred on October 6, 2011. Mr. Wolfe began receiving psychiatric
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treatment on the day after the accident for his tearful episodes, flashbacks, nightmares, and
insomnia. Mr. Wolfe filed an application requesting that post-traumatic stress disorder be added
as a compensable condition. The claims administrator denied the request to add post-traumatic
stress disorder as a compensable condition.

        The Office of Judges affirmed the claims administrator’s decision denying the request to
add post-traumatic stress disorder as a compensable condition. The Board of Review reversed the
Order of the Office of Judges and added post-traumatic stress disorder as a compensable
condition. On appeal, Blacktop Industries disagrees and asserts that there is no causal connection
between post-traumatic stress disorder and the minor injury Mr. Wolfe sustained in the motor
vehicle accident. Blacktop Industries further argues that the Board of Review misstated the law
as to when psychiatric conditions are compensable. It asserts that the post-traumatic stress
disorder was caused solely by nonphysical means, specifically the fatality of the other driver. Mr.
Wolfe maintains that the Board of Review correctly found that West Virginia law does not bar a
claim for post-traumatic stress disorder. Mr. Wolfe further maintains that the undisputed
evidence clearly establishes that he suffers from post-traumatic stress disorder as a direct result
of the traumatic motor vehicle accident that occurred in the course of his employment as a truck
driver.

        The Office of Judges concluded that Mr. Wolfe’s application for benefits was barred
pursuant to West Virginia Code § 23-4-1f (1993) which prohibits claims for an injury “solely
caused by nonphysical means and which did not result in any physical injury or disease to the
person claiming benefits.” The Office of Judges found that it was uncontested that Mr. Wolfe
was involved in a motor vehicle accident while working and received multiple abrasions on his
back and shoulder. The Office of Judges noted that the claim was held compensable for
superficial injury of other multiple/unspecified sites. The Office of Judges further noted that Mr.
Wolfe sought psychiatric treatment and reported having feelings of grief, guilt, and anxiety as
well as flashbacks and nightmares. The Office of Judges pointed to West Virginia Code of State
Rules § 85-20-12.4 (2006) and West Virginia Code § 23-4-1f as the controlling law. The Office
of Judges found that Mr. Wolfe did not meet his burden of proof and that the evidence
demonstrates that his psychiatric problems are associated with the fatality rather than his
physical injuries, which were noted to be minor in the initial consultation. The Office of Judges
further found that there was no evidence contained in the psychiatric consultation that
demonstrated Mr. Wolfe’s psychiatric condition is directly related to the compensable injury.
The Office of Judges concluded that Mr. Wolfe did not establish a causal connection between his
diagnosed post-traumatic stress disorder and the physical compensable injury.

       The Board of Review reversed the Order of the Office of Judges and found the
conclusion of the Office of Judges was clearly wrong. The Board of Review found that the facts
were not in dispute in this case but determined that the Office of Judges incorrectly found this
claim was barred by West Virginia Code § 23-4-1f. The Board of Review pointed to the physical
nature of the incident, particularly the muscle spasm and abrasions of multiple sites. The Board
of Review found the psychiatric records showed that immediately after the accident Mr. Wolfe
began experiencing daily tearful episodes, frequent and recurring flashbacks of the accident,
vivid nightmares, and insomnia. The Board of Review relied on the opinion of Dr. Mercado, a
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psychiatrist, who diagnosed Mr. Wolfe with post-traumatic stress disorder related to the October
6, 2011, motor vehicle accident. The Board of Review concluded that Mr. Wolfe suffered
physical and psychiatric injuries in the course of and resulting from his work-related injury and
added post-traumatic stress disorder as a compensable condition of the claim.

        This Court agrees with the findings and conclusions of the Order of the Board of Review.
West Virginia Code § 23-4-1f does not apply to this claim. Mr. Wolfe did suffer a physical
injury in the form of abrasions on his back and shoulder, and his claim was held compensable for
superficial injury of other multiple/unspecified sites. Mr. Wolfe also has provided medical
evidence that he suffers from post-traumatic stress disorder. He began seeking psychiatric
treatment the day after his motor vehicle accident and was diagnosed with post-traumatic stress
disorder by Dr. Mercado. Therefore, this Court finds that Mr. Wolfe’s request for post-traumatic
stress disorder as a compensable condition is not barred and affirms the Order of the Board of
Review.

        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: December 3, 2014

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




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