                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 26, 2016
DENISE O’CONNOR,                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                      OF WEST VIRGINIA



vs.)   No. 15-1127	 (BOR Appeal No. 2050445)
                   (Claim No. 2014015546)

ST. MARY’S MEDICAL CENTER
HOME HEALTH SERVICES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Denise O’Connor, by Edwin Pancake, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. St. Mary’s Medical Center Home
Health Services, LLC, by Lisa Warner Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 27, 2015, in
which the Board affirmed an April 10, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 17,
2014, decision closing Ms. O’Connor’s claim for temporary total disability benefits.
Additionally, the Office of Judges affirmed the claims administrator’s November 21, 2014,
decision denying a request to add cervical dystonia, cervical radiculopathy, and cervical
headaches as additional compensable components of Ms. O’Connor’s claim for workers’
compensation benefits. 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.




                                                1
        Ms. O’Connor was injured on November 1, 2013, while assisting a patient during the
course of her employment as a registered nurse.1 Diagnostic imaging performed shortly after the
injury revealed a mild tear of the supraspinatus tendon in the left shoulder, evidence of a prior
C3-4 fusion, osteoarthritis contributing to foraminal stenosis at C4-5 and C5-6, and a disc bulge
at C5-6.2 On May 23, 2014, Ms. O’Connor sought treatment in the emergency department of
Cabell Huntington Hospital amid complaints of weakness and numbness in her legs. Treatment
notes from the Cabell Huntington emergency department indicate that Ms. O’Connor has
experienced difficulty with weakness and muscle spasms following a C3-4 decompression
performed in 2009. It was further noted that she has range of motion limitations in the cervical
spine which have been present for an extended period of time. Additionally, a cervical spine
MRI was performed and revealed degenerative disc disease, primarily at C4-5.

        Following a successful manipulation of her left shoulder under anesthesia, Ms. O’Connor
was released to return to work beginning on June 23, 2014, by Charles Giangarra, M.D., her
orthopedic surgeon. Subsequently, Ms. O’Connor sought treatment with Paul Ferguson, M.D.,
who noted on July 18, 2014, that Ms. O’Connor was complaining of neck pain, headaches, and
limb pain. Dr. Ferguson noted that Ms. O’Connor reported that she has been experiencing neck
pain, headaches, and left upper extremity pain for an extended amount of time, but noticed an
increase in her symptoms following the C3-4 fusion performed in 2009. He also noted the
presence of disc disease at C4-5 and opined that she suffers from cervical dystonia, which he
further opined is likely the cause of her current symptoms.

       On September 17, 2014, the claims administrator closed Ms. O’Connor’s claim on a
temporary total disability basis based upon its finding that she was released to return to work by
Dr. Giangarra in June of 2014. On November 6, 2014, Dr. Ferguson completed a diagnosis
update request in which he listed her diagnoses as cervical dystonia, cervicogenic headaches, and
cervical radiculopathy.3 Dr. Ferguson opined that the November 1, 2013, injury resulted in a
bulging cervical disc, which precipitated the development of cervical dystonia and radiculopathy
with associated limb pain, weakness, and numbness. On November 21, 2014, the claims
administrator denied Dr. Ferguson’s request to add cervical dystonia, cervical radiculopathy, and
cervical headaches as compensable diagnoses. Following the claims administrator’s decisions,
Ms. O’Connor was deposed on January 22, 2015. She testified that following the injury, she
returned to work on June 17, 2014, but was unable to continue working as a result of severe neck
pain.



1
  An Order holding the claim compensable was not introduced into evidence. However, it appears
from a reading of the record that the only compensable injuries were injuries to Ms. O’Connor’s
left shoulder.
2
  Diagnostic imaging performed in 2009 also revealed the presence of a disc bulge at C5-6.
3
  In the margin of the diagnosis update request form, a handwritten note indicates that the
primary diagnosis is a disc bulge. However, the claims administrator did not enter a finding
regarding the compensability of this diagnosis and Ms. O’Connor did not raise the issue of the
compensability of a disc bulge on appeal.
                                                2
        The Office of Judges affirmed the September 17, 2014, and November 21, 2014, claims
administrator’s decisions. The Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision dated October 27, 2015. On appeal, Ms. O’Connor asserts that
the evidence of record demonstrates that she injured her cervical spine on November 1, 2013,
and is therefore entitled to the addition of cervical dystonia, cervical radiculopathy, and cervical
headaches as compensable components of her claim. Additionally, she asserts that the evidence
of record demonstrates that she is entitled to additional temporary total disability benefits.

        Regarding the request to add cervical radiculopathy and cervical headaches as
compensable components of Ms. O’Connor’s claim, the Office of Judges found that the evidence
of record demonstrates that Ms. O’Connor suffered from significant cervical spine impairments
prior to the November 1, 2013, injury. Specifically, the Office of Judges noted that Ms.
O’Connor underwent a prior C3-4 fusion, and also complained of cervical headaches and
radiculopathy prior to the November 1, 2013, injury. Further, the Office of Judges found that Dr.
Ferguson, Ms. O’Connor’s treating physician who requested the addition of the diagnoses at
issue as compensable components of the claim, did not address her known pre-existing cervical
spine impairments when making his request. Regarding the diagnosis of cervical dystonia, the
Office of Judges noted that Dr. Ferguson opined that Ms. O’Connor developed cervical dystonia
following a cervical disc bulge caused by the compensable injury. However, the Office of Judges
further noted that diagnostic imaging obtained shortly after the injury did not reveal any new disc
herniations when compared with diagnostic imaging obtained prior to the injury.

        Regarding the closure of the claim on a temporary total disability basis, the Office of
Judges looked to West Virginia Code § 23-4-7a (2005), which provides that temporary total
disability benefits are not payable after a claimant has reached maximum medical improvement,
is released to return to work, or actually returns to work, whichever occurs first. The Office of
Judges then found that Ms. O’Connor’s own testimony demonstrates that she was unable to
continue working solely as a result of cervical spine impairments. The Office of Judges further
found that she testified that she was released to return to work with respect to the compensable
shoulder injury. Further, the Office of Judges noted that Mr. O’Connor has failed to demonstrate
that the diagnoses related to the cervical spine should be added as compensable components of
the claim. The Office of Judges therefore concluded that Ms. O’Connor has not demonstrated
that she is unable to return to work as the result of a compensable injury. Moreover, pursuant to
West Virginia Code § 23-4-7a, Ms. O’Connor is ineligible for additional temporary total
disability benefits because she has been released to return to work, and did return to work, with
respect to the compensable shoulder injury. We agree with the reasoning and conclusions of the
Office of Judges, as affirmed by 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.



                                                 3
                                     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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