                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 16, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TAMMY S. WILSON,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1742	 (BOR Appeal No. 2045954)
                   (Claim No. 2006061322)

NESTLE PURINA PETCARE COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Tammy S. Wilson, by Christopher J. Wallace, her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Nestle Purina Petcare
Company, by Lucinda L. Fluharty, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 1, 2011, in
which the Board reversed a May 6, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges modified the claims administrator’s September 2, 2010,
decision which denied Ms. Wilson’s request to add the diagnosis of major depression, recurrent,
as a compensable condition of her claim. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of a particular component of the evidentiary record. This
case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate
Procedure and is appropriate for a memorandum decision rather than an opinion.

        Ms. Wilson has suffered from chronic major depression for a number of years and has
received various treatments because of the condition, including electroconvulsive therapy and
inpatient services. Ms. Wilson has treated her depression with antipsychotic, stimulant,
antidepressant, and anxiolytic medications for a number of years. The majority of the services
and medications that Ms. Wilson received have been provided by Dr. Deol, who has treated Ms.
Wilson for over ten years. Ms. Wilson received a right shoulder injury on October 23, 2006,
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which was held compensable. On March 31, 2010, Dr. Deol requested the addition of major
depression, recurrent, as a secondary condition of Ms. Wilson’s shoulder injury. Dr. Deol stated
that the work-related injury, especially dealing with the stress of the workers’ compensation
system, aggravated Ms. Wilson’s pre-existing major depression. On September 2, 2010, the
claims administrator denied Dr. Deol’s request to add the condition as a compensable component
of the claim. Following the denial, Dr. Burstein performed an independent psychiatric
examination of Ms. Wilson. Dr. Burstein determined that Ms. Wilson functioned better
psychologically than she did prior to her injury and found no indication of heightened depression
since the injury. On May 6, 2011, the Office of Judges modified the claims administrator’s
decision and found that the aggravation of Ms. Wilson’s pre-existing depression was a
compensable condition of the claim. But on December 1, 2011, the Board of Review reversed the
Office of Judges’ Order and reinstated the claims administrator’s September 2, 2010, decision,
leading Ms. Wilson to appeal.

        The Office of Judges concluded that the compensable injury, at least on a temporary
basis, aggravated Ms. Wilson’s chronic major depression. The Office of Judges concluded that
Ms. Wilson would be entitled to treatment and other benefits, which could be proven by
sufficient medical evidence to relate to the aggravation instead of the pre-existing major
depression. The Office of Judges also added major depression, recurrent, as a compensable
component of Ms. Wilson’s claim. Although the Office of Judges found that Ms. Wilson had a
long standing problem with depression, it found sufficient evidence that the compensable injury
aggravated this depression. The Office of Judges found that Ms. Wilson needed some additional
psychiatric treatment as a result of her compensable injury.

       The Board of Review reversed the Order of the Office of Judges and reinstated the claims
administrator’s decision. The Board of Review concluded that the diagnosis of major depression
should not be added as a compensable component of the claim because Ms. Wilson did not
demonstrate that her shoulder injury aggravated her pre-existing major depression. The Board of
Review found that Dr. Burstein’s report was reliable and that Ms. Wilson’s current psychiatric
symptoms were consistent with her condition prior to her compensable injury. The Board of
Review also determined that Ms. Wilson had not received electroconvulsive therapy or inpatient
treatment since her compensable injury.

        The decision of the Board of Review was based on a material misstatement of the
evidentiary record. Although Ms. Wilson had a longstanding problem with depression, there is
sufficient evidence in the record that her compensable injury aggravated this condition. The
report of Dr. Deol shows that Ms. Wilson’s work injury and the stress of the workers’
compensation system have at least temporarily aggravated her depression. Dr. Deol’s opinion is
supported by the record taken as a whole.

        For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
Therefore, the decision of the Board of Review is reversed, and the case is remanded with
instructions to reinstate the May 6, 2011, Order of the Office of Judges.

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                                   Reversed and remanded.

ISSUED: January 16, 2014

CONCURRED IN BY:
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum

DISSENTING
Chief Justice Robin J. Davis
Justice Allen H. Loughry II




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