                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                November 7, 2017
DANYEL K. HABIG,                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 17-0151 (BOR Appeal No. 2051508)
                   (Claim No. 2015008186)

EAGLE NATRIUM, LLC,
Employer Below, Respondent

                             MEMORANDUM DECISION
        In workers’ compensation, a claimant is entitled to medically related and reasonably
required treatment as long as the treatment is for an injury or disease sustained in the course of
and resulting from employment. Danyel K. Habig was working for Eagle Natrium, LLC, when
she was struck in the side of the head by a heavy piece of copper. We are asked to decide
whether cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 should be
added to Ms. Habig’s claim. We are also asked to determine if dry needling and trigger point
therapy for the neck should be authorized. After a thorough review of the evidence of record, we
find that the requested diagnoses are not the result of the compensable injury and should not be
added to the claim. Additionally, the requested treatment for the non-compensable conditions
cannot be authorized. We also find, after consideration of the parties’ briefs and evidentiary
record, that the decisional process would not be significantly benefitted by oral argument. We
find no substantial question of law or prejudicial error. Therefore, a memorandum decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.

        Treatment notes from Barnesville Hospital emergency room the day after Ms. Habig’s
injury indicate she was treated at the work place medical area following the injury but was now
experiencing headache, nausea, and a knot on her head. A CT scan was normal. Ms. Habig was
diagnosed with traumatic brain injury. There was no neck pain, and she was advised to rest.

        The report of injury indicates Ms. Habig sustained a head/brain injury. No mention was
made of the cervical spine. A physician summary from Ohio Valley Medical Center noted that
she was hit in the head nine days prior and was still feeling dizzy, nauseous, and had a headache.
The impression was post-concussive headache. A CT scan was normal. Michael Kovalick, D.O.,
treated Ms. Habig and indicated she was still having persistent headaches. CT scans were
negative. The impression was closed head injury with concussion and traumatic brain injury.

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        In a second report of injury, Ms. Habig asserted that she was struck in the head. Dr.
Kovalick completed the physician’s section and stated that he treated her for an occupational
closed head injury with concussion. In October of 2014, Dr. Kovalick stated in a progress note
that Ms. Habig was improving. The diagnoses remained closed head injury with concussion and
traumatic brain injury. Shortly thereafter, the claim was held compensable for unspecified head
injury. In a treatment note at the end of October, Dr. Kovalick indicated that Ms. Habig had good
days and bad ones. The diagnosis remained closed head injury with concussion and vertigo. She
further reported no significant neck pain in December of 2014. A month later, ChuanFang Jin,
M.D., performed an independent medical evaluation in which she noted that Ms. Habig had no
neck tenderness on examination.

        Dr. Kovalick reviewed his treatment notes and found that Ms. Habig really has no
mention of neck pain at the initial visit and first follow up. He found a physical therapy note
where some paracervical muscles were treated along with the concussion treatment. He felt that
it may be appropriate if she wanted to try therapy for a few weeks for the paracervical muscles,
but he did not have enough information to add cervical spine strain to her claim eight months
post injury.

        Ms. Habig sought further treatment for her concussion symptoms. Maria Twichell, M.D.,
evaluated her and diagnosed concussion and neck pain with cervicogenic headaches. Dry
needling and trigger point therapy to the neck was recommended. Dr. Kovalick recommended
Ms. Habig continue with work conditioning and get started on therapy for dry needling two to
three times a week for three weeks. The claims administrator denied authorization for dry
needling and trigger point therapy for the neck.

        In an independent medical evaluation in October of 2015, David Lobas, M.D.,
determined that Ms. Habig had reached maximum medical improvement for her compensable
head trauma and possible cerebral concussion. She could return to full duty work over the
following month. In a treatment note, Dr. Kovalick released Ms. Habig to return to part-time
work in mid-October. He noted that she was doing physical therapy for her neck under her
private insurance. A cervical MRI was repeated and showed degenerative disc disease at C5-6
and C6-7 with broad based posterior disc osteophyte complexes and superimposed left
paracentral disc herniations, causing moderate central canal stenosis at both levels.

       Dr. Jin issued a supplemental report regarding a request to calculate permanent
impairment since Ms. Habig reached maximum medical improvement. She assessed 3%
impairment. She noted that the neck had not been accepted as a compensable condition in the
claim and it therefore received 0% impairment. In a January of 2016 letter, Ronald Hargraves,
M.D., stated that Ms. Habig was injured in September of 2014 and since then had been
experiencing neck pain and sub-occipital headaches without a specific history of cervical
radiculopathy. He noted that a cervical spine MRI was reviewed and there is an annular tear at
C6-7 and moderate stenosis at C5-6 and C6-7 due to disc herniations. He believed the herniations
were the cause of the symptoms but did not recommend surgery at that time. The claims
administrator denied the addition of cervical herniated discs at C5-6 and C6-7 and stenosis at C5­
6 and C6-7 to the claim.
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        The Office of Judges affirmed the claims administrator’s Orders denying the addition of
cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 to the claim as well as
denying treatment of such. It found that Ms. Habig was injured on September 10, 2014, but did
not report cervical problems until June 3, 2015. As part of his occupational health services
evaluation, Dr. Kovalick’s checked back through Ms. Habig’s treatment notes and saw no
evidence of neck pain at the initial visit or the first follow up. He noted a physical therapy note
which indicated some paracervical muscles were treated along with the concussion treatment.
However, he stated that he did not have enough information to add cervical strain to the claim
eight months post injury. Ms. Habig underwent an MRI on in November of 2015, which showed
degenerative disc disease with herniations at C5-6 and C6-7. The Office of Judges found that Dr.
Hargraves opined that Ms. Habig had been experiencing neck pain since her compensable injury;
however, the Office of Judges found that Dr. Hargraves did not treat her until well over a year
after the compensable injury occurred. The Office of Judges concluded that Ms. Habig did not
report cervical pain until eight months after the compensable injury and it was noted in multiple
medical records that she had no cervical pain on examination. The Office of Judges found that
cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 should not be added to
the claim, nor should the requested treatment for such be authorized. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on January 20, 2017.

       On appeal before this Court, Ms. Habig argues that there is no evidence that she had
cervical symptoms prior to the compensable injury. She also asserts that physical therapy notes
show that she suffered from neck tenderness two weeks after the compensable injury occurred.
Eagle Natrium, LLC, argues that Ms. Habig failed to report neck pain until eight months after the
compensable injury occurred. She was evaluated by three different physicians on seven different
occasions between the compensable injury’s occurrence and June of 2015 who either reported no
neck pain or found no neck pain.

       After review of the evidence of record and consideration of the parties’ arguments, we
agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of
Review. Ms. Habig was injured in September of 2014 and did not report cervical pain until June
of 2015. When Dr. Kovalick reviewed Ms. Habig’s treatment notes as part of an occupational
health services initial evaluation at Ohio Valley Medical Center, he stated that he saw no
evidence of neck pain in the initial two treatment notes and a minor reference to treatment of
paracervical muscles as part of the concussion treatment in physical therapy. But, he did not have
enough information from her treatment records to add cervical strain as a compensable
component of the claim eight months after the work-related injury. Because the evidence
supports the Office of Judges’ and Board of Review’s conclusions that the conditions should not
be added to the claim, the requested treatment was likewise 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
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.
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                                        Affirmed.
ISSUED: November 7, 2017


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

DISSENTING:
Justice Menis E. Ketchum




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