                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                June 27, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
DIANA S. WADE,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0212 (BOR Appeal No. 2047472)
                   (Claim No. 2011024596)

OHIO VALLEY MEDICAL CENTER, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Diana S. Wade, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Ohio Valley Medical Center, Inc.,
by Toni J. Minner, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 31, 2013, in
which the Board affirmed, in part, and reversed, in part, a July 6, 2012, Order of the Workers’
Compensation Office of Judges. In its Order, the Office of Judges reversed the claims
administrator’s September 28, 2011, decision which held the claim closed and found that there
was no causal relationship between neck complaints and the compensable injury. 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. For these reasons, a memorandum decision is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Ms. Wade, a registered nurse, was injured in the course of her employment on January
13, 2011, while lifting a patient. Her claim was held compensable for lumbosacral and thoracic
sprain/strain. Ms. Wade alleges that she developed cervical pain shortly after the compensable
injury. She was thereafter diagnosed with cervical and trapezius sprain/strain and it was
requested that the conditions be added to the claim. On September 28, 2011, the claims
administrator held the claim closed based upon an independent medical evaluation by Bill
Hennessey, M.D., finding that she had reached maximum medical improvement for her

                                                1
compensable conditions. In its decision, the claims administrator also stated that there was no
causal relationship between the complaints of neck pain and the compensable injury.

        The Office of Judges reversed the claims administrator’s decision in its July 6, 2012,
Order. It held that a claim cannot be administratively closed for treatment until barred by West
Virginia Code § 23-4-16(a)(4) (2005). It found that the claims administrator’s decision closed the
claim but did not specifically state what the claim was being closed for. The Office of Judges
found that Ms. Wade was not receiving temporary total disability benefits and had not received a
permanent partial disability award at that time. Therefore, it was determined that the claims
administrator intended to close the claim for further treatment. In Lovas v. Consolidation Coal
Company, 222 W.Va. 91, 662 S.E.2d 645 (2008) this Court stated that a claim remains open for
medical benefits on an unlimited basis until it satisfies the statutory requirement for permanent
closure for treatment as set forth in West Virginia Code § 23-4-16(a)(4). The Office of Judges
found that the claims administrator’s attempt to administratively close the claim was specifically
disavowed in Lovas. Pursuant to West Virginia Code § 23-4-16(a)(4), a claim will be closed for
further treatment only when no substantial treatment or durable medical goods have been
rendered in the treatment of the claimant’s compensable condition for a period of five years.
Since Ms. Wade has had treatment in the past five years for her compensable injury, the Office
of Judges held that her claim could not be closed for all further treatment. It noted that the claims
administrator’s decision did not specifically deny any request for treatment. It also did not
address the addition of cervical sprain or trapezius sprain as compensable diagnoses in the claim.
Those issues were determined not to be before the claims administrator and the Office of Judges
declined to make a ruling on those issues.

        On January 31, 2013, the Board of Review affirmed the Office of Judges’ Order insofar
as it held that the claim could not be administratively closed. However, it reversed the Order
insofar as it declined to rule on the compensability of the cervical condition. The Board of
Review held that the claims administrator did address the compensability of the cervical
condition when it stated that there is no causal connection between the neck complaints and the
compensable injury. The Board of Review ultimately found that there are many inconsistencies
in the evidentiary record and a preponderance of the evidence therefore failed to demonstrate that
Ms. Wade’s neck condition is causally related to her compensable injury. It therefore reinstated
the claims administrator’s decision insofar as it held that there is no causal relationship between
the complaints of neck pain and the compensable injury.

        The Board of Review’s decision is based, in part, upon a misstatement or
mischaracterization of the evidentiary record. It found that the claims administrator addressed
whether or not a cervical condition was a compensable component of the evidentiary record.
However, the claims administrator’s decision merely stated “[t]here is no causal relationship
concerning complaints to the neck and the accepted injury of above.” The decision failed to
make a ruling on the compensability of the requested conditions of cervical and trapezius
sprain/strain.

        For the foregoing reasons, we affirm the Board of Review’s decision insofar as it held
that the claim could not be administratively closed. We reverse the decision insofar as it held that
                                                 2
there is no causal relationship concerning complaints to the neck and the compensable injury.
The case is remanded with instructions to make a finding regarding compensability of the
requested diagnoses of cervical sprain/strain and trapezius sprain/strain.

                                         Affirmed, in part, and reversed and remanded, in part.

ISSUED: June 27, 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




                                              3
