                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                    FILED
CHRISTOPHER FRANKLIN,                                                            April 25, 2019
                                                                               EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                     SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

vs.)   No. 18-0570 (BOR Appeal No. 2052368)
                   (Claim No. 2016001501)

CRAMER SECURITY & INVESTIGATIONS,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Christopher Franklin, by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Cramer Security & Investigations,
by Jane Ann Pancake and Jeffrey B. Brannon, its attorneys, filed a timely response.

        The issues on appeal are compensability of additional conditions and medical benefits. The
claims administrator denied the addition of post-traumatic headaches, memory loss, and
concussion as additional compensable conditions in the claim on March 21, 2017. On May 18,
2017, it denied a request for a referral to Samrina Hanif, M.D. The claims administrator denied
authorization of medical treatment at MedExpress on April 30, 2017, in its May 23, 2017, decision.
The Office of Judges affirmed the decisions of the claims administrator in its December 1, 2017,
Order. The Order was affirmed by the Board of Review on May 25, 2018.

        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. Franklin, a security guard, was injured in a motor vehicle accident in the course of his
employment on July 3, 2015. Treatment notes the following day from Plateau Medical Center
emergency room indicate Mr. Franklin reported a low speed car accident that occurred when he
swerved to avoid hitting a deer. He was wearing a seatbelt and the airbags did not deploy. It was
noted that there was no loss of consciousness. Mr. Franklin was diagnosed with head injury,
cervical sprain, and hip contusion. A CT scan of the head showed a heterogeneous appearance of
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the frontal bone due to an old injury or surgery. Mr. Franklin was given discharge instructions for
concussion and brain injury, hip injury, and cervical sprain.

        The Employee’s and Physician’s Report of Occupational Injury, completed on July 8,
2015, indicates Mr. Franklin was in a motor vehicle accident while trying to avoid a deer. The
physician’s section was completed by Plateau Medical Center and lists the diagnoses as head
injury, cervical sprain, and hip contusion. The claim was held compensable for head injury,
cervical sprain, and hip contusion on October 21, 2015. On January 10, 2016, a second Employee’s
and Physician’s Report of Occupational Injury indicates Mr. Franklin injured his head, neck, back,
and hip when he lost control of his truck and hit a tree due to defective equipment. He also reported
that he sustained a concussion and brain injury. The physician’s section was completed at
MedExpress and listed the diagnoses as cervical sprain and unspecified head injury.

       Mr. Franklin sought treatment from MedExpress on March 2, 2016, stating that he had seen
no improvement since the compensable injury. He reported neck pain, shoulder pain, foot pain,
and headaches. Mr. Franklin also reported difficulty with memory. Examination was unremarkable
except for pain upon cervical range of motion. He was diagnosed with cervical radiculopathy,
cervical sprain, head injury, and lumbar sprain.

        Mr. Franklin sought treatment from Dr. Hanif, a neurologist, on March 16, 2016. Dr. Hanif
noted that he reported headaches since the compensable injury. He also alleged some memory loss.
Mr. Franklin stated that he hit his head in the motor vehicle accident and lost consciousness for a
few minutes. Dr. Hanif diagnosed post-traumatic headaches and recommended an EMG of the left
arm. The EMG was performed on May 6, 2016, and was normal. Mr. Franklin returned to Dr.
Hanif on May 19, 2016, and reported a host of symptoms including headaches, confusion,
dizziness, fainting, irritability, insomnia, and anxiety. However, Mr. Franklin’s neurological
examination was normal. Dr. Hanif diagnosed post-traumatic headaches, memory loss, and
frequent headaches. She opined that Mr. Franklin had reached maximum medical improvement
from a neurological standpoint.

        Joseph Grady, M.D., performed an independent medical evaluation on October 19, 2016,
in which he noted that Mr. Franklin had a history of seizures in childhood as well as congenital
cranial stenosis. A neurological evaluation was unremarkable. Dr. Grady opined that the
compensable injury caused a cervical sprain. Dr. Grady noted that Mr. Franklin reported cognitive
issues and opined that they would have to be evaluated by a neurologist to determine if they were
the result of the compensable injury or his preexisting neurological abnormalities. Dr. Grady found
that Mr. Franklin had reached maximum medical improvement. He assessed 5% impairment for
cervical range of motion restrictions.

       Mr. Franklin returned to MedExpress on November 3, 2016. At that time he had reduced
cervical range of motion. He was diagnosed with left shoulder pain, peripheral nervous system
disorder, idiopathic epilepsy, headaches, and neck pain. Dr. Hanif completed a diagnosis update
on March 3, 2017, in which she requested that post-traumatic headaches, memory loss, and
concussion be added to the claim. The claims administrator denied the request on March 21, 2017.

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        On April 30, 2017, Mr. Franklin returned to MedExpress and stated that he wanted seizures
added to his workers’ compensation claim. He stated that his family had started to notice him
staring off and he does not realize when that is happening. Mr. Franklin was diagnosed with
amnesia and released to return to work with no operating of heavy equipment. The claims
administrator denied a request for a referral to Dr. Hanif on May 19, 2017. On May 23, 2017, it
denied authorization of the April 30, 2017, MedExpress visit.

        Bobby Miller, M.D., performed an independent neuropsychiatric forensic evaluation on
July 3, 2017, in which he noted that Mr. Franklin reported wrecking his vehicle and losing
consciousness for five minutes. He stated that he lost traction going around a curve and was not
sure if there was a deer present or not. Dr. Miller noted that Mr. Franklin had a seizure disorder
until age eight and surgery at three months old due to cranial stenosis. Mr. Franklin reported a host
of symptoms to Dr. Miller including headaches, memory loss, sleep issues, dizziness, depression,
personality changes, fatigue, anxiousness, confusion, seizures, racing thoughts, and anger issues.
Dr. Miller performed an array of neuropsychological tests and found that the testing supports intact
neuropsychological function without deficits. He opined that Mr. Franklin’s headaches are likely
a result of myofascial strain. Dr. Miller further opined that the evidence fails to support diagnoses
of post-traumatic headaches, memory loss, or concussion. Dr. Miller diagnosed malingering and
recommended Mr. Franklin see a neurologist for his staring spells. Dr. Miller opined, however,
that the spells are unlikely to be related to the compensable injury.

        Mr. Franklin testified in a deposition on July 13, 2017, that he remembered part of the
motor vehicle accident but not all of it. He stated that he hit his head and lost consciousness. He
also stated that he returned to work immediately and was told to take it easy. Mr. Franklin alleged
that he was fired for sleeping on the job but that he was just stretched out at the time the pictures
of him sleeping in his truck were taken. He testified that his memory loss and headaches began
immediately after the injury but the seizures did not start until a little over a year later.

       On October 6, 2017, Robert Walker, M.D., performed an independent medical evaluation
in which he noted that Mr. Franklin reported headaches and short term memory loss since the
compensable injury. Dr. Walker performed a mental status evaluation, which was normal. He
assessed 8% cervical impairment, 2% left shoulder impairment, and 3% impairment for a closed
head injury.

        In its December 1, 2017, Order, the Office of Judges affirmed the claims administrator’s
decisions denying the addition of post-traumatic headaches, memory loss, and concussion as
additional compensable conditions in the claim; denying a request for a referral to Dr. Hanif; and
denying authorization of medical treatment at MedExpress on April 30, 2017. The Office of Judges
found that Dr. Hanif completed the request for additional conditions; however, her treatment notes
do not support her request. Dr. Hanif failed to mention post-traumatic headaches, concussion, or
memory loss in the clinical findings section of the diagnosis update. She merely wrote that Mr.
Franklin had left arm numbness of uncertain etiology. Further, Dr. Hanif’s first treatment note
failed to list objective findings and failed to explain how the symptoms are related to the
compensable injury. The Office of Judges next found that a significant treatment gap existed in
Dr. Hanif’s treatment notes from May 19, 2016, to March 3, 2017. In Dr. Hanif’s May 19, 2017,
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treatment note, Mr. Franklin reported headaches, confusion, dizziness, fainting, insomnia,
irritability, and anxiety. Dr. Hanif stated that he was at maximum medical improvement from a
neurological standpoint at that time. Her objective findings were unremarkable.

        The Office of Judges found that Dr. Miller evaluated Mr. Franklin and concluded that post-
traumatic headaches, memory loss, and concussion are not related to the compensable injury. The
Office of Judges also determined that the medical evidence contains numerous inconsistencies in
regard to the compensable injury. Mr. Franklin first reported to the emergency department that he
was involved in a low speed car accident, had no loss of consciousness, and that the impact was to
the passenger side. His story changed over time and he reported that he lost consciousness and that
he struck his head and shoulder on the left side of the truck even though the impact was to the right
side. Lastly, the Office of Judges found that Mr. Franklin’s symptoms are not proportionate to the
compensable injury. Even assuming he struck his head and shoulder on the left side, his
neurological and cognitive complaints were found to be unsupported by the medical evidence. Dr.
Hanif’s treatment notes were found to be superficial, and she found Mr. Franklin had reached
maximum medical improvement and released him to return to work despite his reported symptoms.

        Regarding the requested medical treatment, West Virginia Code § 23-4-3(a)(1) (2005)
provides that the claims administrator must provide medically related and reasonably required
sums for healthcare services, rehabilitation services, durable medical and other goods, and other
supplies. The Office of Judges found that the referral to Dr. Hanif was not medically related to or
reasonably necessary for the compensable injury. The Office of Judges found that another referral
to Dr. Hanif would not be necessary to treat a compensable condition. Post-traumatic headaches,
memory loss, and concussion were not added to the claim, and those are the conditions for which
Dr. Hanif provided treatment. Further, the request for a referral to Dr. Hanif was made by
MedExpress nearly a year after Dr. Hanif released Mr. Franklin from her care.

         Finally, the Office of Judges determined that the April 30, 2017, treatment at MedExpress
should not be authorized. It found that while Mr. Franklin did report cervical pain at that visit, he
provided no evidence supporting his assertion that the cervical sprain was causing his symptoms.
His main complaints involved neurological and cognitive defects, which are not compensable in
this claim. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order on May 25, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Franklin failed to show by a preponderance of the evidence
that post-traumatic headaches, memory loss, and concussion resulted from the compensable injury.
Dr. Miller performed an independent neuropsychiatry forensic evaluation in which he opined that
the conditions were unrelated to the compensable injury. His opinion is reliable and supported by
a preponderance of the evidentiary record. Because the conditions are not compensable, treatment
for them was also properly denied.

        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

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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: April 25, 2019


CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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