                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                    FILED
SHAYNE BITTINGER,                                                               December 11, 2015
                                                                             RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs.)   No. 13-1288 (BOR Appeal No. 2048479)
                   (Claim No. 2012004785)


GREENBRIER HOTEL CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Shayne Bittinger, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Greenbrier Hotel Corporation, by
Gary W. Nickerson and James W. Heslep, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in
which the Board affirmed a May 21, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 22, 2011,
decision to reject the claim. 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.

        Mr. Bittinger, an employee of Greenbrier Hotel Corporation, alleges that on July 28,
2011, he was using a new sprayer when he accidently sprayed himself with Quali-Pro
Mefenoxam. On August 3, 2011, Mr. Bittinger reported to Greenbrier Medical Center with a rash
across his chest and arms that started two days prior. Mr. Bittinger asserts that he told Greenbrier
Medical Center that he was exposed to Quali-Pro Mefenoxam at work. However, their medical
records indicate that he could not identify what he was exposed to that caused the rash. The
original diagnosis based upon physical examination was contact dermatitis. Randall Short, D.O.,
and Marsha Bailey, M.D., both performed a record review in this case. Both doctors opined that
the alleged Mefenoxam exposure at work was not the cause of Mr. Bittinger’s symptoms. Dr.
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Short relied on the six day gap between the symptoms and Mr. Bittinger’s statement that he
thought the Mefenoxam might have caused his reaction. Dr. Bailey opined, nearly a year and a
half after the injury and without physical examination, that the original diagnosis of contact
dermatitis was wrong. Dr. Bailey then described the symptomatology and how it related to serum
sickness. She stated that serum sickness is a form of urticarial and or angioedema disorders and
is a disorder of the immune system which is unrelated to his exposure to Mefenoxam. The
disorders are characterized by the occurrence of fever, urticarial polyarthralagias, and
lymphadenopathy seven to ten days after primary exposure to a protein or antigen such as a drug
or infection. Dr. Bailey opined that Mr. Bittinger’s symptoms were classic examples of serum
sickness that started as an immunological mediated skin disease misdiagnosed as contact
dermatitis. She opined that the likely cause was a drug reaction. Dr. Bailey then noted that Mr.
Bittinger had a history of skin rashes and hives in response to Niaspan and itching in response to
Tri-cor. Mr. Bittinger also reported a history of allergic reaction to penicillin. Dr. Bailey
indicated that Mefenoxam has the potential for skin irritation but it does not cause dermal
sensation of systemic symptoms or immune system response. Dr. Bailey then noted that Mr.
Bittinger’s immune system responded to whatever he was exposed to because his white blood
cell count was elevated.

        The Office of Judges determined that Mr. Bittinger did not suffer from contact dermatitis
in the course of and as a result of his employment with Greenbrier Hotel Corporation. The Office
of Judges found that Dr. Bailey’s report was more persuasive and consistent with the other
evidence of record. Dr. Bailey stated that contact dermatitis should not cause an immune system
response, whereas serum sickness would cause an immune system response. Dr. Bailey then
noted that Mr. Bittinger’s white blood cell count came back as elevated, which indicated that his
immune system responded. Dr. Bailey opined that Mr. Bittinger’s reaction was not caused by his
exposure to Mefenoxam but was caused by either an exposure to a drug or an infection. The
Office of Judges also stated that its decision was supported by the fact that Mr. Bittinger has had
reactions to numerous medications in the past. As a result, the Office of Judges determined that
Mr. Bittinger’s symptoms were caused by serum sickness that is unrelated to his work at
Greenbrier Hotel Corporation. The Board of Review adopted the findings of the Office of Judges
and affirmed its Order.

        We agree with the findings of the Office of Judges and Board of Review. The Office of
Judges and Board of Review did not err in finding that Dr. Bailey’s report was more persuasive
and consistent with the other evidence of record. Dr. Bailey demonstrated that contact dermatitis
should not cause an immune system response, whereas serum sickness would cause an immune
system response. Dr. Bailey then noted that Mr. Bittinger’s white blood cell count came back as
elevated, which indicated that his immune system responded. Dr. Bailey opined that Mr.
Bittinger’s reaction was not caused by his exposure to Mefenoxam but was caused by either an
exposure to a drug or an infection. This inference was further supported by the fact that Mr.
Bittinger has had reactions to numerous medications in the past. Because the evidence was
consistent with a finding that Mr. Bittinger suffered from serum sickness as opposed to contact
dermatitis, the Office of Judges and Board of Review did not err in finding that his symptoms
were caused by an illness unrelated to his employment with Greenbrier Hotel Corporation.

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        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: December 11, 2015

CONCURRED IN BY:
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Margaret L. Workman
Justice Robin J. Davis




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