                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS                                    FILED
                                                                                      May 30, 2019
TALON S. RILEY,                                                                EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                         OF WEST VIRGINIA



vs.)   No. 18-0586 (BOR Appeal No. 2052309)
                   (Claim No. 2017001521)

ALLIANCE COAL, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Talon S. Riley, by Christopher J. Wallace, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Alliance Coal, LLC, by Henry C.
Bowen, its attorney, filed a timely response.

        The issues on appeal are the addition of post-traumatic stress to the claim and temporary
total disability benefits. The claims administrator closed the claim for temporary total disability
benefits on January 31, 2017. On June 5, 2017, it denied the addition of post-traumatic stress
disorder to the claim. The Office of Judges affirmed the decisions in its October 31, 2017, Order.
The Order was affirmed by the Board of Review on May 29, 2018.

        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 that
the Board of Review’s decision is based upon material misstatements and mischaracterizations 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.

        Mr. Riley, a coal miner, was injured in the course of his employment on July 8, 2016, when
rocks fell from the ceiling and struck his helmeted head. Treatment notes that day from Allegheny
General Hospital indicate Mr. Riley was brought to the emergency room after being hit on the head
by a falling rock and losing consciousness. He reported neck pain and numbness in his hands. A
cervical MRI; brain CT; and CT of the thoracic, cervical, and lumbar spine were all normal. He
was diagnosed with loss of consciousness, closed head injury, neck pain, and bilateral upper
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extremity numbness. The July 21, 2016, Employees’ and Physicians’ Report of Injury indicates
Mr. Riley lost consciousness when he was struck in the head by falling rocks. The diagnoses were
listed as concussion and bilateral upper extremity numbness.

        July 25, 2016, treatment notes from Trinity WorkCare indicate Mr. Riley reported neck
pain, stiffness, difficulty turning his head, and numbness in his left arm. He was diagnosed with
concussion, blunt head trauma, cervical sprain, and bilateral upper extremity numbness. He was
told that he would need extensive physical therapy for his neck. He was given medication and told
to return in two weeks. The claim was held compensable for concussion and bilateral upper
extremity numbness on July 25, 2016.

       A September 27, 2016, treatment note by Aaron Orlosky, D.O., indicates Mr. Riley
reported headaches, dizziness, weakness, fatigue, neck pain, left hand numbness, behavior
problems, sleep problems, memory problems and anxiety. Dr. Orlosky referred him for an MRI,
physical therapy, and a consultation with a neuropsychiatrist.

        In an independent medical evaluation performed on October 14, 2016, Patricia Bailey, Ph.
D., was asked to assess Mr. Riley’s cognitive and emotional functioning. Dr. Bailey concluded
that he was experiencing anxiety and depression as a result of the compensable injury. She found
that he met the criteria for post-traumatic stress disorder and recommended therapy. She opined
that his condition renders him temporarily and totally disabled.

        Victor Thomas, M.D., performed an independent medical evaluation on January 24, 2017,
in which he opined that Mr. Riley had fully recovered from his head injury, cervical strain, and
upper extremity numbness. He declined to comment on Mr. Riley’s concussion or psychiatric state.
Dr. Thomas opined that Mr. Riley had reached maximum medical improvement for his physical
injuries and recommended 0% impairment. Based on his report, the claims administrator closed
the claim for temporary total disability benefits on January 31, 2017.

        Mr. Riley was evaluated by Liv Miller, Psy.D., on March 1, 2017, for a neuropsychological
evaluation of concussion, headaches, and emotional distress. Mr. Riley denied all cognitive
difficulties except for increased distractibility when he is emotional. He requested that testing stop
after an hour because he was unable to finish. Dr. Miller stated that this made the results not
interpretable. Dr. Miller observed that Mr. Riley was irritable, frustrated, tearful, and
overwhelmed.

        Cheryl Hill, M.D., Ph.D., performed an evaluation on March 21, 2017, in which Mr. Riley
reported that he has been fearful and suffered from post-traumatic stress disorder since the
compensable injury. Dr. Hill diagnosed post-traumatic stress disorder and depressive disorder. She
opined that Mr. Riley was temporarily and totally disabled as a result of his psychological
conditions. On April 25, 2017, Dr. Hill prepared a second report in which she stated that Mr.
Riley’s inability to finish psychological testing does not alter his diagnosis. She stated that his
prognosis was difficult to determine and recommended he begin therapy. She found a reasonable
likelihood that Mr. Riley would develop chronic post-traumatic stress disorder since he did not

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receive psychological treatment following the compensable injury. She recommended a
reassessment after he underwent therapy.

        The claims administrator denied the addition of post-traumatic stress disorder to the claim
on June 5, 2017. On October 31, 2017, the Office of Judges affirmed the decision as well as the
claims administrator decision closing the claim for temporary total disability benefits. An injured
worker is entitled to temporary total disability benefits for the period in which they are unable to
work. West Virginia Code § 23-4-1c (2009). Pursuant to West Virginia Code § 23-4-7a (2005),
temporary total disability benefits will cease when the claimant has reached maximum medical
improvement, has been released to return to work, or has returned to work, whichever occurs first.
In this case, the Office of Judges found that the claim was closed based on Dr. Thomas’s finding
that Mr. Riley had reached maximum medical improvement. Though Drs. Bailey and Hill found
Mr. Riley was not at maximum medical improvement due to post-traumatic stress disorder, the
condition is not a compensable component of the claim and, therefore, the claim was properly
closed for temporary total disability benefits.

        In order to add a new compensable condition to a claim, a claimant must meet the same
standards as those for compensability. Pursuant to West Virginia Code § 23-4-1 (2008), employees
who receive injuries in the course of and as a result of their covered employment are entitled to
benefits. For an injury to be compensable it must be a personal injury that was received in the
course of employment, and it must have resulted from that employment. Barnett v. State
Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970). In this case,
the Office of Judges determined that Mr. Riley was referred to Dr. Bailey to assess his cognitive
and emotional functioning. Dr. Bailey found Mr. Riley’s psychological conditions rendered him
temporarily and totally disabled. She diagnosed post-traumatic stress disorder and depressive
disorder as a result of the compensable injury. The Office of Judges found that Dr. Bailey’s
findings had to be verified, so Mr. Riley was sent to Dr. Miller. At that time, Mr. Riley was unable
to complete psychological testing. The results were therefore uninterpretable. Mr. Riley was then
seen by Dr. Hill, who diagnosed post-traumatic stress disorder and depressive disorder and opined
that his psychological conditions rendered him temporarily and totally disabled. In an addendum,
she asserted that Mr. Riley’s failure to finish psychological testing did not alter his diagnosis.

        The Office of Judges found that West Virginia Code of State Rules § 85-20-12.3 provides
that evidentiary weight be given to a report according to how well the evaluation was conducted
in accordance with the rules outlined in Exhibits A, B, and C. In this case, the Office of Judges
was concerned with Exhibit C, which is a report outline for psychiatric independent medical
evaluations. The employer argued before the Office of Judges that Dr. Hill’s report fails to comply
with West Virginia Code of State Rules § 85-20-12.4 because she failed to explain the facts and
circumstances that support the post-traumatic stress disorder diagnosis. The employer further
argued that West Virginia Code of State Rules § 85-20-12.7 requires that Mr. Riley undergo
psychological assessment. Mr. Riley moved to Florida during this process and failed to report to
two independent medical evaluations that he was informed were scheduled with psychiatrist
Bobby Miller, M.D.


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        The Office of Judges found the employer’s arguments to be persuasive. It determined that
Mr. Riley failed to meet his burden of proof. Though he attended the independent medical
evaluation with Dr. Hill, he failed to complete the testing. Therefore, Dr. Hill’s report is not fully
reliable and did not meet the requirements of West Virginia Code of State Rules § 85-20. It also
noted that Mr. Riley also failed to report to the independent medical evaluations the employer
scheduled with Dr. Miller. The Board of Review affirmed the Office of Judges’ Order. It disagreed
with the finding that Dr. Hill’s report did not comport with the requirements of West Virginia Code
of State Rules § 85-20 but based its affirmation on the other reasoning set forth in the Office of
Judges’ Order.

        After review, we disagree with the Order of the Board of Review. Dr. Bailey performed a
complete evaluation of Mr. Riley and determined that he had post-traumatic stress disorder and
that the condition rendered him temporarily and totally disabled. Dr. Hill observed Mr. Riley
during testing and though he was unable to complete all of the tests that day, Dr. Hill opined that
his diagnosis of post-traumatic stress disorder was not affected by his inability to finish the testing.
The only physician of record to find that Mr. Riley had reached maximum medical improvement
was Dr. Thomas, and he stated that he deferred an opinion on Mr. Riley’s psychological state as
he was not qualified to give a rating in that area. A preponderance of the evidence indicates that
Mr. Riley has post-traumatic stress disorder as a direct result of his compensable injury. However,
since the employer did not get an opportunity to have him evaluated by its own physician, the
claim is remanded for further evidence in order to obtain a complete and accurate assessment of
Mr. Riley’s compensable conditions and temporary total disability.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
material misstatements and mischaracterizations of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to allow for further
development of the evidentiary record, including an independent psychiatric medical evaluation
by a physician of the employer’s choosing.



                                                                            Reversed and Remanded.

ISSUED: May 30, 2019


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



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