                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DONNA SHAY,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0739 (BOR Appeal No. 2049133)
                   (Claim No. 2013022900)

WEIRTON MEDICAL CENTER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Donna Shay, appearing pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. Weirton Medical Center, Inc., by Peter R. Rich, its
attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 13, 2014, in which
the Board reversed a December 18, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s May 31, 2013, decision
which denied a referral to Kumar Patel, M.D., for environmental allergy testing. The Office of
Judges granted authorization for environmental allergy testing. 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 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. Shay worked for Weirton Medical Center, Inc. On February 6, 2013, Ms. Shay
suffered from an environmental allergic reaction to construction dust at her work. Ms. Shay was
initially treated at the Emergency Room in the Weirton Medical Center, Inc. A physician from
the emergency room treated her with Albuterol breathing treatment and steroids. The claim was
held compensable for respiratory and chest symptoms and inhaling and ingesting objects.1 Ms.
Shay requested environmental allergy testing as recommended by Steven H. Mascio, D.O. Dr.
Mascio initially treated Ms. Shay on February 11, 2013, and noted that she presented with
symptoms of hoarseness, her face turning red, and chest tightness after being exposed to
construction at work. He diagnosed her with urticaria located in the area of face and neck, and
hoarseness and concluded that both were triggered by construction dust. Prasadarao B.
Mukkamala, M.D., performed a record review on April 16, 2013, and recommended denying the
requested allergy testing based on Ms. Shay’s symptoms subsiding when the construction work
in her department was finished. The claims administrator denied a request for environmental
allergy testing based on Dr. Mukkamala’s record review.

        The Office of Judges reversed the claims administrator’s decision and found the
requested allergy testing is medically related and reasonably required medical treatment in this
claim. The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s decision, also in reliance on Dr. Mukkamala’s review. The Board of Review
found Ms. Shay’s condition had resolved since construction ended and that she is back to
working full-time. Therefore, the Board of Review concluded that environmental allergy testing
is not medically necessary or reasonably required in the course of treatment for the compensable
injury. On appeal, Ms. Shay disagrees and asserts that the testing is needed to understand what
she was breathing in and what she can expect from it. She further asserts that she continued to
experience symptoms on and off. Weirton Medical Center, Inc., maintains that the Board of
Review correctly denied the testing because the Office of Judges authorized it after the
compensable condition had completely disappeared.

        This Court finds that the Order of the Board of Review is based upon a material
misstatement or mischaracterization of the evidentiary record. The Office of Judges found that
the evidence demonstrated Ms. Shay has had episodes of urticaria and hoarseness when
subjected to construction at work. Dr. Mascio saw Ms. Shay on February 11, 2013, and
diagnosed her with urticaria located on her face/neck and hoarseness. He found both of these
were triggered by construction dust. Dr. Mascio opined that Ms. Shay should not work in areas
under construction. The Office of Judges noted that Ms. Shay’s symptoms seem to clear up when
there is no construction at her work. It further noted that there have been many construction
projects at her work, which could certainly recur at any time. The Office of Judges determined
that no specific trigger mechanism has been identified because Ms. Shay was not authorized to
have the environmental allergy testing performed. Therefore, the Office of Judges found it would
be helpful if a trigger mechanism could be identified so that a particular agent could be restricted
from her department or at least notice could be given to her so she could avoid the agent in order
to not have another reaction. The Office of Judges concluded that the preponderance of the
evidence demonstrated that Ms. Shay continues to suffer on and off again symptoms related to
some type of exposure at work when construction is at her workplace.

        Futhermore, Dr. Mukkamala only performed a record review whereas Dr. Mascio treated
Ms. Shay for a series of months. Dr. Mukkamala stated that a rash was not present around the
time of the injury. However, when Dr. Mascio first treated Ms. Shay on February 11, 2013, a few
1
  The claims administrator held the claim compensable for diagnoses that are somewhat difficult
to decipher because no diagnosis codes were listed and the diagnoses are abbreviated.
days after the injury, he did note that a rash was present. Dr. Mascio agreed with Dr. Mukkamala
that Ms. Shay’s symptoms subside when construction is not present at her workplace but like the
Office of Judges found construction could occur at any time in the future. It would be beneficial
to Ms. Shay and Weirton Medical Center, Inc., to know what Ms. Shay needs to avoid while
working when construction is occurring. Also, Dr. Mascio diagnosed Ms. Shay with urticaria
located on face/neck and hoarseness and concluded that both of these were triggered by
construction dust. Furthermore, Ms. Shay has been found by the claims administrator to have
been exposed to occupational dust, and the claim was held compensable for this injury.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed, and the claim is remanded with instructions to reinstate the
Office of Judges’ December 18, 2013, Order.

                                                                       Reversed and Remanded.

ISSUED: May 7, 2015

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

DISSENTING:
Justice Brent D. Benjamin
