                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

HUNTINGTON ALLOYS CORPORATION,                                                        FILED
Employer Below, Petitioner                                                         November 15, 2019
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.)   No. 18-1020 (BOR Appeal No. 2052795)                                        OF WEST VIRGINIA

                   (Claim No. 2011007994)

ROGER STURGEON,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Huntington Alloys Corporation, by Counsel Steven K. Wellman, appeals the
decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Roger Sturgeon, by Counsel Edwin H. Pancake, filed a timely response.

       The issues on appeal are medical benefits and additional compensable conditions. The
claims administrator held the claim compensable for open wound of the forehead on September
15, 2016. In two separate decisions dated February 1, 2017, the claims administrator denied a
request to add closed head injury to the claim and denied authorization for an evaluation by a
neuropsychologist. The Office of Judges affirmed the September 15, 2016, decision in its April 5,
2018, Order. In that Order, the Office of Judges also reversed the February 1, 2017, claims
administrator’s decisions, added closed head injury to the claim, and authorized a
neuropsychological evaluation. The Order was affirmed by the Board of Review on October 22,
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 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. Sturgeon, an electrician, was injured in the course of his employment on August 19,
2010, when he fell approximately twenty feet into a pit. Treatment notes from Cabell Huntington
Hospital that day indicate Mr. Sturgeon was treated for a forehead laceration and a fractured
radius/ulna. He reported no loss of consciousness. A head CT scan showed degenerative disc
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disease in the cervical spine. The Employees’ and Physicians’ Report of Injury was completed on
August 19, 2010, and indicated Mr. Sturgeon injured his head and right wrist when he fell into a
pit. The physician’s section listed the injury as a fractured right wrist. The employer’s incident
investigation report, completed that same day, stated that Mr. Sturgeon fell thirteen feet, hit a sled,
bounced, and then struck a coworker, Mr. Jones, in the upper back. A third coworker was also
injured while trying to break Mr. Sturgeon’s and Mr. Jones’s fall. Mr. Sturgeon fractured his right
arm, required stitches in the right arm, had a possible rib fracture, and had possible right shoulder
damage. On August 31, 2010, the claim was held compensable for closed fracture of the right
carpal bone. Right shoulder sprain was added to the claim on September 28, 2010.

        An independent medical evaluation was performed by Marsha Bailey, M.D., on March 17,
2011, and indicated Mr. Sturgeon reported short term memory loss. Dr. Bailey opined that though
he reported that he hit his head on the day of his injury, his memory problems were not related to
the compensable injury. She noted that Mr. Sturgeon did not lose consciousness and that a CT scan
taken the day of the injury was normal. She further noted that head injuries tend to improve with
time. Dr. Bailey stated that Mr. Sturgeon’s wife reported that their children and Mr. Sturgeon’s
physical therapists have commented on his memory loss. Dr. Bailey recommended a neurological
consultation.

        Mr. Sturgeon treated with Alan Koester, M.D., from April to August of 2011. The
treatment notes indicate Mr. Sturgeon reported short term memory loss. It was first thought to be
the result of the pain medication he was given for his injuries. When it persisted, neurological
treatment was recommended. A deposition was taken of Jeffrey Myles, a member of the
employer’s emergency response team, on March 11, 2014. Mr. Myles stated that he arrived at the
scene shortly after Mr. Sturgeon fell. Mr. Sturgeon was conscious at that time but was not coherent.
Mr. Myles stated that he was informed Mr. Sturgeon fell head first, but his fall was broken by a
coworker. Mr. Myles testified that when he first saw Mr. Sturgeon, he was visibly shaking and in
pain.

        In a June 3, 2015, independent medical evaluation, Bruce Guberman, M.D., noted that Mr.
Sturgeon had a scar on the left side of his forehead that resulted from the compensable injury. Mr.
Sturgeon reported that prior to the injury, he had occasional headaches. After the injury, his
headaches were much more frequent and painful. He now experienced headaches three or four
times a week. Mr. Sturgeon also reported short term memory loss and that he had difficulty driving
due to the memory loss. Dr. Guberman diagnosed post-traumatic headaches and post-traumatic
cognitive dysfunction due to a closed head injury.

        Bal Bansal, M.D., a neurologist, treated Mr. Sturgeon for short term memory loss on June
8, 2016. Mr. Sturgeon’s wife reported that her husband’s short term memory loss was so severe
that she feared leaving him home alone. She stated that Mr. Sturgeon kept notes all the time to aid
his memory but still got very confused. Mr. Sturgeon reported difficulty processing information,
rapid mood swings, and an inability to control his anger. He was easily frustrated, and his
medication was not helping his symptoms. Dr. Bansal performed a cognitive assessment and
concluded that Mr. Sturgeon had a traumatic brain injury which causes problems with cognition.
He recommended ruling out bipolar disorder and requested authorization of an MRI, EEG, nerve
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conduction studies, and medication adjustment. The claims administrator held the claim
compensable for open wound of the forehead on September 15, 2016.

       In an October 18, 2016, independent medical evaluation, Dr. Guberman noted that Mr.
Sturgeon reported daily headaches since the compensable injury occurred as well as short term
memory loss. Dr. Guberman diagnosed post-traumatic headaches and post-traumatic cognitive
dysfunction. He assessed 7% mental status impairment.

       Syam Stoll, M.D., performed an independent medical evaluation on November 15, 2016,
in which he noted that Mr. Sturgeon’s wife and children noticed his memory problems. Mr.
Sturgeon reported daily headaches that were affected by light. Dr. Stoll opined that Mr. Sturgeon
did not suffer a closed head injury when he fell. The evaluation at the hospital immediately
following the injury showed no indication of a head injury. Further, Mr. Sturgeon did not report
memory issues until a year after the compensable injury occurred. Dr. Stoll found that the medical
evidence failed to show a causal relationship between Mr. Sturgeon’s memory issues and the
compensable injury. Dr. Stoll opined that if Mr. Sturgeon has any cognitive impairment, it is mild
and the result of his diabetes, which had been uncontrolled for fourteen years.

       On January 25, 2017, a neuropsychological evaluation was performed by Jeffrey Harlow,
Ph.D., a psychologist. Dr. Harlow noted that Mr. Sturgeon reported difficulty with short term
memory, fatigue, headaches, difficulty concentrating, flashbacks, depression, and anxiety. Dr.
Harlow performed psychological evaluations, which produced valid results. He found that Mr.
Sturgeon suffered from a chronic amnestic disorder due to a head injury, post-traumatic stress
disorder, chronic major depressive disorder, anxiety disorder, and borderline intellectual
functioning. Dr. Harlow opined that the anxiety and depressive disorders preexisted the
compensable injury. He further opined that the amnestic disorder and post-traumatic stress disorder
were caused by the compensable injury.

        The claims administrator denied a request to add closed head injury to the claim on
February 1, 2017. In a separate order that day, the claims administrator also denied authorization
of an evaluation by a neuropsychologist. Mr. Sturgeon was seen by Anthony McEldowney, M.D.,
on May 8, 2017. The treatment note indicates he reported memory loss, daily headaches, and
balance issues. Dr. McEldowney diagnosed closed head injury with memory loss and deterioration
of cognitive functioning.

        Dr. Harlow testified in a June 23, 2017, deposition that the medical documentation
indicates Mr. Sturgeon likely did not lose consciousness when he fell. However, traumatic brain
injuries do not require a loss of consciousness to occur. Dr. Harlow noted that both Drs. Guberman
and McEldowney diagnosed closed head injury with residual memory loss and deterioration of
cognitive functioning. Dr. Harlow stated that short term memory loss and an amnestic disorder are
both symptoms of post-concussive syndrome.

       A psychological evaluation was performed by David Clayman, M.D., on August 8, 2017,
in which he found that Dr. Koester deferred an opinion on neuropsychological issues because he
was unqualified in that area. Dr. Bailey stated in a deposition that she did not come to any
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conclusion regarding a brain injury1. Dr. Clayman found that Mr. Sturgeon had complaints of
memory issues since the time of the compensable injury. His symptoms worsened over time, which
is inconsistent with a concussive injury. Dr. Clayman stated that Dr. Harlow’s diagnosis of
amnestic disorder is not supported by the evidence. Dr. Clayton opined that Mr. Sturgeon’s current
symptoms would not have resulted from the 2010 compensable injury. At the time of his
evaluation, Dr. Clayton stated that he found no objective findings of memory deficits. However,
Mr. Sturgeon’s attention, construction skills, calculations, verbal skills, visual skills, visual
working skills, immediate memories, and delayed memories were all below standard scores. Mr.
Sturgeon also had mild to moderate impairment with visual scanning, discrimination, sequencing,
and cognitive flexibility.

        On April 5, 2018, the Office of Judges affirmed the September 15, 2016, claims
administrator decision; reversed both February 1, 2017, claims administrator decisions; held the
claim compensable for closed head injury; and authorized a neuropsychological evaluation. It
found that the mechanism of injury supports Mr. Sturgeon’s assertion that he sustained a head
injury. He fell approximately twenty feet, hit his head on a beam, and then fell to the ground. He
suffered a laceration to his forehead. His coworker, Mr. Myles, testified that he saw Mr. Sturgeon
immediately after his fall and that he appeared to be shaken and not completely coherent. The
Office of Judges further found that the only neurological assessment of record, by Dr. Bansal,
determined that Mr. Sturgeon had a traumatic brain injury. Dr. Harlow, who performed a
neuropsychological assessment, testified that closed head injuries do not necessarily require loss
of consciousness, skull fractures, or hemorrhages. He determined that Mr. Sturgeon suffered from
an amnestic disorder due to a head injury. The Office of Judges also concluded that there was no
evidence of malingering in this case. The Office of Judges found that Mr. Sturgeon’s first report
of memory problems was made seven months after the compensable injury occurred. However,
Mr. Sturgeon’s wife stated to Dr. Bailey that she initially attributed his memory problems to his
pain medication, but the memory loss did not resolve after he weaned off of the medication.

        The Office of Judges found that the employer relied on reports by Drs. Stoll and Clayman,
both of whom downplayed the seriousness of the mechanism of injury. Neither physician found
evidence of malingering. The Office of Judges determined that Dr. Stoll’s opinion that Mr.
Sturgeon’s memory issues were due to diabetes was not credible. It also found that Dr. Clayman’s
overall conclusion, that Mr. Sturgeon’s memory scores were within normal limits, is not supported
by the rest of his report. Specifically, Dr. Clayman found that Mr. Sturgeon’s working memory
was weak and that his verbal, visual, visual working, immediate, and delayed memory scores were
below average. Further, Dr. Clayman concluded that Mr. Sturgeon’s scores were within his
intellectual capabilities; however, Mr. Sturgeon presented evidence that his intellectual capabilities
had deteriorated since the compensable injury. Though it was a close case, the Office of Judges
concluded that it is more likely than not that Mr. Sturgeon sustained a closed head injury as a result
of his compensable fall.

        Regarding the neuropsychological evaluation, the Office of Judges determined that since
it found that a closed head injury was a compensable condition, a neuropsychological evaluation

1
    This deposition is not in the record.
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should be authorized. The medical records indicate that such evaluation is reasonable in order to
determine the extent of Mr. Sturgeon’s closed head injury and whether there are any other
contributing factors. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on October 22, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The standard for determining whether a new condition should
be added to a claim is the same as the standard for compensability. 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, a preponderance of the evidence supports the Office
of Judges’ conclusion that open wound of the forehead and closed head injury should be added to
the claim. It was noted from the day he fell that Mr. Sturgeon sustained a forehead laceration. He
started reporting issues with memory seven months after the injury occurred. The delay in
reporting the symptoms, he explained, was due to the fact that he and his wife assumed the memory
issues were side effects of his pain medication. When he stopped taking the medication and the
symptoms remained, he reported them to his physicians. The only physicians of record to opine
that Mr. Sturgeon had no closed head injury were Dr. Stoll and Dr. Clayman. Dr. Stoll attributed
the memory issues to uncontrolled diabetes. His opinion is not supported by any other medical
evidence of record. Dr. Clayman opined that Mr. Sturgeon had no objective indications of memory
problems, but his test scores contradicted Dr. Clayman’s conclusion.

        Pursuant to West Virginia Code § 23-4-1(a) (2008), workers’ compensation benefits shall
be provided to those employees who have received personal injuries in the course of and as a result
of their covered employment. West Virginia Code § 23-4-3(a)(1) (2005) provides that the claims
administrator must provide medically related and reasonably required sums for healthcare services,
rehabilitation services, durable medical and other goods, and other supplies. Because the claim
was held compensable for closed head injury, a neuropsychological evaluation was properly
authorized.

         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.


                                                                                          Affirmed.




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ISSUED: November 15, 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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