                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                  April 19, 2013

                                                                             RORY L. PERRY II, CLERK

ALBERT R. LITTLETON,                                                       SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0899 (BOR Appeal No. 2045190)
                   (Claim No. 2000045373)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

ASPLUNDH TREE EXPERT CO.,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Albert R. Littleton, by William C. Gallagher, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review’s Order denying authorization
for an updated psychiatrist diagnosis and neuropsychological testing. Asplundh Tree Expert Co.,
by Lucinda Fluharty, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 9, 2011, in which
the Board affirmed a September 24, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s order of November
6, 2009. 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.

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       In this case, Mr. Littleton worked as a foreman for Asplundh Tree Expert Co. On
November 5, 1999, Mr. Littleton was involved in a motor vehicle accident in the course of his
employment and suffered serious injuries that were found to be compensable by the Office of
Judges on September 28, 2001.

        In 2003, in an independent medical exam, Dr. Ryan Finkenbine found Mr. Littleton to be
at maximum medical improvement with a 13% total psychiatric impairment. Dr. Finkenbine
stated that the compensable injuries of November 5, 1999, were an aggravation of a preexisting
disorder. Dr. Finkenbine found that Mr. Littleton met the criteria for an Axis 1 diagnosis of
depressive disorder based on the symptoms of depressed mood, appetite change, sleep
disturbance, feelings of worthlessness, decreased energy, and anhedonia. Dr. Finkenbine was
not clear about the onset of the disorder as Mr. Littleton’s medical records revealed that he had
been started on Prozac three months prior to the occupational injury and had taken Prozac
intermittently over many years prior.

        Dr. Finkenbine, also found that Mr. Littleton met the criteria for a diagnosis of cognitive
disorder, not otherwise specified, based on signs and symptoms of irritability and cognitive
difficulties including poor memory, concentration and verbal expression. Mr. Littleton and his
wife noted cognitive difficulties which were not present prior to the compensable injury,
including frequent mistakes in naming common household items, misplacement of personal
items, and difficulties with concentration and memory.

       Mr. Littleton’s treating physician, Dr. Sella, submitted a request for an updated
psychiatrist diagnosis and neuropsychological testing. Dr. Sella’s report stated that he did not
know whether the present symptoms were due to the 1999 compensable injuries. The Office of
Judges found that a preponderance of the evidence failed to prove that the claimant’s current
psychiatric condition was a result of Mr. Littleton’s compensable injuries. The Board of Review
reached the same reasoned conclusion in its decision of May 9, 2011. We agree with the
reasoning and conclusions of 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.

                                                                                        Affirmed.

ISSUED: April 19, 2013

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


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DISSENTING:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum




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