                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
CARLA BLANKENSHIP,                                                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 13-0412 (BOR Appeal No. 2047690)
                    (Claim No. 2008038512) 2002032810)


HEALTH MANAGEMENT ASSOCIATES
OF WEST VIRGINIA, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Carla Blankenship, by John C. Blair, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Health Management Associates of
West Virginia, Inc., by H. Dill Battle III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 2, 2013, in which
the Board affirmed a September 14, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 22, 2011,
decision that Ms. Blankenship is not entitled to greater than a 5% permanent partial disability
award on a psychiatric basis. 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. Blankenship was working as a registered nurse for Health Management Associates at
Williamson Memorial Hospital on April 3, 2008, when a combative patient kicked her in the side
of the head. She reported to the emergency room and was diagnosed with left mandible and left
maxillary contusions. Ms. Blankenship underwent left temporomandibular joint open
arthroplasty. Thereafter on September 4, 2009, she reported to Robert B. Walker, M.D., for an
independent medical evaluation. He opined that she had reached her maximum degree of medical
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improvement and suffered 18% whole person impairment on an orthopedic basis related to the
compensable injury. As a result Ms. Blankenship was granted an 18% permanent partial
disability award on an orthopedic basis. Ms. Blankenship developed psychiatric issues and
reported to Jay Narola, M.D., from June 18, 2009, until January 12, 2010. Ms. Blankenship then
visited Rosemary Smith, M.D., on May 19, 2011, for a psychological evaluation. Following the
psychological testing, Dr. Smith concluded the Ms. Blankenship’s overall IQ placed her in the
average range of cognitive functioning. Ms. Blankenship appeared to have functioning consistent
with educational attainment. Dr. Smith noted that anxiety was not present in test results,
however, depression was pronounced in the test protocol. She noted the claimant appeared
receptive to counseling. Dr. Smith noted that Ms. Blankenship was realistic in self-concept and
her usual response to problems, conflicts, or stress was adaptive and useful. Dr. Smith also found
that her psychological insight was acceptable. Ms. Blankenship then underwent an independent
psychiatric evaluation from Ralph S. Smith, Jr., M.D. Dr. Smith found 5% whole person
impairment based upon Ms. Blankenship’s psychiatric component of her injury. The claims
administrator granted a 5% permanent partial disability award based upon the psychiatric
independent medical evaluation performed by Dr. Ralph Smith. Ms. Blankenship timely
protested this decision and asserted she was entitled to 8% permanent partial disability in
accordance with the report of Ahmed Faheem, M.D. Dr. Faheem examined Ms. Blankenship on
January 6, 2012, several months after Dr. Ralph Smith determined that Ms. Blankenship had
reached her maximum degree of medical improvement. Dr. Faheem stated that Ms. Blankenship
has a global assessment of functioning (GAF) score of 50 on the diagnosis page. However, later
in the conclusion section of his report, Dr. Faheem opines that Ms. Blankenship has a GAF score
between 55 and 60. Dr. Faheem opined Ms. Blankenship has suffered major depression
subsequent to the injury of April 3, 2008. She did have some additional stressors, as noted by Dr.
Ralph Smith, but the problems with depression and chronic pain developed well before those
incidents. Dr. Faheem felt those were secondary issues, and he diagnosed her with Major
Depressive Disorder and found that the problems related to that condition were pre-existent and
continued in spite of Ms. Blankenship’s difficulties. He agreed with Dr. Smith that Ms.
Blankenship had reached maximum medical improvement. He recommended 8% impairment for
the work injury.

        The Office of Judges determined that Ms. Blankenship was not entitled to any more than
a 5% permanent partial disability award related to the psychiatric component of her injury. The
Office of Judges concluded that Dr. Ralph Smith’s report was entitled to more evidentiary
weight because it more closely followed the principles embodied in West Virginia Code of State
Rules § 85-20-12.8 (2006). The Office of Judges arrived at this conclusion for several reasons.
First, Dr. Faheem evaluated Ms. Blankenship nearly eight months after Dr. Ralph Smith
determined that she reached her maximum degree of medical improvement. The Office of Judges
determined it was more difficult for Dr. Faheem to distinguish between the symptoms that were
work-related and those that were non-work-related. Next, the Office of Judges determined that
the inconsistencies within Dr. Faheem’s report calls into question its credibility. Dr. Faheem’s
report states that Ms. Blankenship has a global assessment of functioning (GAF) score of 50 on
the diagnosis page. Later, in the conclusion section, Dr. Faheem opines that that Ms.
Blankenship has a GAF score between 55 and 60. The Office of Judges noted the marked
difference between a GAF score of 50 and one between 55 and 60. If Ms. Blankenship had a
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GAF score of 55, then she would be in Class III, which usually requires mild continuous
outpatient treatment. A GAF of 50 would place Ms. Blankenship in Class IV, moderate, which
would usually require intensive outpatient treatment. Dr. Faheem did not explain why he
suggests a GAF score of 50 in one part of his report and a score of 55 to 60 in another part of his
report. The Office of Judges also found that Dr. Faheem failed to consider the fact that Ms.
Blankenship had been off medication since May of 2011, which supports a Class II designation.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

       We agree with the findings of the Office of Judges and conclusions of the Board of
Review. Ms. Blankenship has failed to demonstrate that she is entitled to any more than a 5%
permanent partial disability award for the psychiatric impairment related to her April 3, 2008,
compensable injury. The only report that concludes otherwise is Dr. Faheem’s. The Office of
Judges was not in error to give greater weight to the report of Dr. Ralph Smith because of the
inconsistencies in Dr. Faheem’s GAF rating, the timing of Dr. Faheem’s evaluation, and Dr.
Faheem’s failure to consider that Ms. Blankenship had been off medication for some time. The
remaining evidence in the record supports Dr. Ralph Smith’s determination that Ms. Blankenship
has 5% whole person impairment related to her psychiatric condition.

        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: May 7, 2015

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




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