                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

PATRICK SHAW,
                                                                                         FILED
Claimant Below, Petitioner                                                              July 31, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs.)   No. 19-0556 (BOR Appeal No. 2053611)                                           OF WEST VIRGINIA
                   (Claim No. 2018002692)

AVALOTIS CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Patrick Shaw, by Counsel J. Robert Weaver, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Avalotis Corporation,
by Counsel Robert J. D’Anniballe Jr., filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on July
18, 2017. The Office of Judges affirmed the decision in its October 31, 2018, Order. The Order
was affirmed by the Board of Review on May 17, 2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.

        Mr. Shaw, a painter, alleges that he was injured when he was exposed to fumes at work. A
November 16, 2016, treatment note from Marietta Memorial Hospital indicates Mr. Shaw was seen
for excessive sweating and vomiting. He reported that he was working in a tank the day before,
when the symptoms began. He stated that emergency workers performed a blood test, which
revealed that his glucose was low. He was treated and his symptoms somewhat improved. It was
noted that a complete blood count showed hemoconcentration elevation of carbon dioxide. He was
transferred to Camden Clark Medical Center.

        Mr. Shaw reported to Camden Clark Medical Center that he was working in an enclosed
tank for the past two days and had experienced vertigo, tinnitus, and headaches. An MRI and MRA
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of the brain were normal. A brain CT scan was compared to a prior May 10, 2009, scan and it was
noted that there were no significant findings. A chest x-ray showed hypoventilatory changes and
cardiac silhouette enlargement. A brain MRI was unremarkable. A carotid doppler showed no
significant stenosis in either carotid artery. Mr. Shaw was diagnosed with possible heat stroke,
hypertension, and anxiety. Mr. Shaw was seen by Michael Morehead, M.D., while he was in the
hospital. Dr. Morehead noted that a stroke assessment was negative and that Mr. Shaw likely had
peripheral labyrinthine disorder. He was discharged on November 18, 2016, with diagnoses of
dizziness, hypertension, anxiety, and polycythemia.

       A November 25, 2016, treatment note from Marietta Memorial Hospital indicates Mr.
Shaw reported dizziness and the new onset of slurred speech. He stated that the symptoms began
a week prior while he was at work. It was noted that at the time, he was wearing a full respirator.
The assessment was likely Bell’s palsy. Treatment notes from Camden Clark Hospital on
November 28, 2016, indicate Mr. Shaw was seen for facial drooping. A CT scan of the brain
showed no acute intracranial process. He was diagnosed with Bell’s palsy.

        Mr. Shaw was treated at Parkersburg Neuro Associates, Inc., on December 6, 2016. The
notes indicate he was seen by Dr. Morehead who noted that Mr. Shaw no longer had vertigo. A
week after the initial incident, Mr. Shaw stated that he awoke with facial paralysis on the left side.
He was diagnosed with Bell’s palsy. It was noted on examination that he had severe left peripheral
facial paralysis. He was diagnosed with facial nerve palsy. On April 26, 2017, Dr. Morehead noted
that Mr. Shaw developed left facial paralysis three weeks after the initial incident, which gradually
improved. He then experienced right ear deafness. After steroid treatment, Mr. Shaw saw
improvement in his hearing. Dr. Morehead diagnosed cranial neuropathies, likely autoimmune in
nature. On August 8, 2017, Mr. Shaw reported drawing in his face with left eye blurriness. Dr.
Morehead again diagnosed facial nerve palsy.

       On March 28, 2017, Mr. Shaw sought treatment at ENT Allergy Associates and was
diagnosed with right ear hearing loss. The following day, he was seen by Gregory Krause, M.D.
Dr. Krause indicate Mr. Shaw was wearing a respirator while at work in November of 2016 when
he developed sudden dizziness. He was diagnosed with asymmetrical hearing loss, Bell’s palsy,
dizziness, and giddiness. On April 11, 2017, Dr. Krause noted that Mr. Shaw was experiencing
dizziness, spinning, and right ear tinnitus. He still had left fascial paralysis. The diagnoses
remained the same.

       Mr. Shaw returned to Dr. Morehead on April 26, 2017, and reported improvement in his
hearing following steroid treatments. The diagnosis was multiple cranial neuropathies, likely
autoimmune based. That same day, Mr. Shaw was also seen by Dr. Krause for increased spinning
and dizziness but believed his hearing had improved. An MRI of the brain was performed on April
29, 2017, and showed no acute findings. Mr. Shaw was again treated by Dr. Morehead on August
8, 2017. The treatment note indicates Mr. Shaw was treated at Ohio State University several times,
and there was still no known cause of his multiple cranial neuropathies.

       The claims administrator rejected the claim on July 18, 2017. On October 31, 2018, the
Office of Judges affirmed the claims administrator’s decision. It found that Mr. Shaw initially
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reported dizziness and vomiting after working in an enclosed environment. However, his
symptoms and conditions then evolved for many months. Dr. Morehead stated that he could not
ascertain the cause of the unusual symptoms. The Office of Judges also found that there is no
indication in the record of what chemicals Mr. Shaw may have been exposed to or the effects they
can have. The only medical report of record attributing his symptoms to his workplace is the Report
of Injury, which was completed long before Mr. Shaw’s symptoms expanded. Further, he was
diagnosed with Bell’s palsy. The Office of Judges concluded that while Mr. Shaw’s symptoms
began at work, he has failed to show that they were the result of his work. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its decision
on May 17, 2019.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Though Mr. Shaw’s symptoms began at work, there is no
evidence in the record that they were a result of his employment. The substance or substances that
Mr. Shaw may have been exposed to are not identified. Therefore, a causal connection cannot be
made.

        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: July 31, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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