                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                   June 24, 2016
BRAYMAN CONSTRUCTION,                                                         RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
Employer Below, Petitioner                                                      OF WEST VIRGINIA



vs.)   No. 15-0486 (BOR Appeal No. 2050021)
                   (Claim No. 2010121608)

JIMMIE L. CREW JR.,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Brayman Construction, by Lisa Warner Hunter, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Jimmie L. Crew Jr., by
Reginald D. Henry, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 27, 2015, in
which the Board affirmed a November 18, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s July 26, 2013,
decision granting Mr. Crew a 5% permanent partial disability award, and instead granted Mr.
Crew a 23% award. 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. Crew, a heavy equipment operator, was injured in the course of his employment on
January 25, 2010, when he was struck in the head by a high pressure water hose. Mr. Crew spent
seven days in the hospital and was diagnosed with minimally depressed skull fracture, scalp
laceration, traumatic subarachnoid hemorrhage, chest pain, and abnormal electrocardiogram.
The claim was held compensable for unspecified head injury and subarachnoid hemorrhage.

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       Mr. Crew underwent several independent medical evaluations in order to determine how
much permanent impairment he sustained as a result of the compensable injury. On January 25,
2011, Howard Senter, M.D., noted that Mr. Crew was back to working full time. He reported that
his symptoms mainly consisted of anxiety and flashbacks when he had to return to the place he
was injured. Dr. Senter concluded that he had no impairment to his body but recommended a
psychological evaluation. Edward Jones, M.A., performed a psychological evaluation on
February 23, 2011. He noted that Mr. Crew had moderate anxiety and mild depression. Mr. Jones
measured Mr. Crew’s IQ at ninety-one. On March 7, 2011, Ahmed Faheem, M.D., performed a
psychological independent medical evaluation in which he diagnosed Mr. Crew with post-
traumatic stress disorder related to the compensable injury. He assessed Mr. Crew’s IQ at ninety-
one. He opined that Mr. Crew would benefit from counseling and medication but clarified that
his post-traumatic stress disorder was not severe enough to interfere with his work. Dr. Senter
reevaluated Mr. Crew on March 20, 2012. At that time, Mr. Crew stated that when he returned to
construction, he developed a headache, dizziness, and anxiety within a few hours of being there
and was terminated from his position.

        The Office of Judges affirmed a claims administrator decision closing the claim for
temporary total disability benefits in a July 5, 2012, Order. The Office of Judges determined that
while Mr. Crew suffered from and required treatment for post-traumatic stress disorder, Dr.
Senter found that it did not rise to the level of temporary total disability and did not prevent him
from working.

       Khalid Hasan, M.D., performed an independent medical evaluation on July 8, 2013, in
which he diagnosed moderate, recurrent, major depressive disorder; chronic post-traumatic stress
disorder; and post-concussion disorder. Testing indicated moderate anxiety and severe
depression. It was noted that Mr. Crew suffered from dreams and intrusive thoughts about his
accident, which lends support to a diagnosis of post-traumatic stress disorder. Dr. Hasan
recommended behavioral techniques to manage depression and anxiety. Shortly thereafter, Dr.
Hasan performed a second evaluation in which opined that Mr. Crew had reached maximum
medical improvement and assessed 5% whole person psychological impairment using the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993). The claims administrator granted Mr. Crew a 5% permanent partial disability award on
July 26, 2013.

        Safiullah Syed, M.D., began treating Mr. Crew for post-traumatic stress disorder in
January of 2013. In an August 26, 2013, letter, Dr. Syed stated that Mr. Crew continued to suffer
from symptoms of post-traumatic stress disorder which included anxiety, depression, irritability,
hypervigilance, flashbacks, nightmares, memory problems, and occasional blackout spells. Dr.
Syed opined that the ongoing psychiatric treatment was necessary as a result of the compensable
injury.

        In a psychological evaluation on February 18, 2014, Ralph Smith, M.D., stated that
testing showed a marked amount of emotional distress and moderate anxiety. Mr. Crew reported
dizziness, headaches, loss of balance, bilateral hearing loss, and heat intolerance. He also
reported that he gets very nervous around drilling equipment and other equipment associated
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with his former work. He stated that he suffered from nightmares of the accident and had
difficulty controlling his anger and concentrating. Dr. Smith diagnosed major neurocognitive
disorder due to traumatic brain injury and post-traumatic stress disorder. He found that Mr. Crew
had notable neurocognitive deficits as a result of his injury. The deficits were notable on both
mental status examination and specialized neuropsychological tests. Dr. Smith opined that Mr.
Crew’s IQ was seventy-seven, which placed him in the borderline range of intellectual
functioning. Dr. Smith therefore concluded that Mr. Crew meets all the criteria for major
neurocognitive disorder and traumatic brain injury. He rated the severity as moderate. Using the
American Medical Association’s Guides, he assessed 14% impairment for cognitive dysfunction.
For post-traumatic stress disorder, he used West Virginia Code of State Rules § 85-20 (2006) and
placed Mr. Crew in psychiatric class III for mild impairment. Dr. Smith opined that his numerous
activity restrictions show that his post-traumatic stress disorder has an impact on his social and
work functioning. He assigned 10% impairment for the condition for a combined
recommendation of 23% psychiatric impairment.

       In an August 15, 2014, independent medical and neuropsychiatric forensic evaluation,
Bobby Miller, M.D., diagnosed Mr. Crew with dysthymic disorder due to the compensable injury
and non-compensable somatoform disorder. Dr. Miller noted that Mr. Crew had chronic mood
symptoms; however, he opined that he no longer met the criteria for post-traumatic stress
disorder and had no evidence of a brain injury. Dr. Miller measured his IQ at ninety-six. He then
compared his IQ testing to others of record and determined that other evaluators, including
himself, found that Mr. Crew has average intelligence. Comparatively, Dr. Smith found mild
mental retardation. Dr. Miller further noted that he found evidence of malingering in his tests. He
opined that possible explanations include recovery or remission from his conditions, past
malingering that was not caught, or both. Dr. Miller opined that Mr. Crew’s impairment for
dysthymic disorder fell in the mild range. He assessed 5% impairment and then apportioned 1%
for non-work-related factors such as life stressors, poor coping skills, and symptom
exaggeration. His total impairment recommendation was therefore 4%. He stated that he agreed
with Dr. Hasan’s reasoning and level of disability for his finding of 5% impairment due to major
depression. Dr. Miller opined that Mr. Crew’s depression had evolved into dysthymic disorder.
Dr. Miller also stated that he disagreed with Dr. Smith’s recommendation of 23% psychological
impairment because Dr. Smith’s findings were remarkably more severe than his.

        On November 18, 2014, the Office of Judges reversed the claims administrator’s grant of
a 5% permanent partial disability award and instead granted Mr. Crew a 23% award. It found
that while Drs. Hasan and Miller both found that he suffers from 5% psychiatric impairment,
their assessments of Mr. Crew differ. Dr. Hasan diagnosed moderate major depressive disorder
and a history of post-traumatic stress disorder. Dr. Miller, in contrast, diagnosed a somatoform
disorder and dysthymic disorder. Dr. Miller also found evidence of symptom magnification. The
Office of Judges stated that while Dr. Hasan and Dr. Miller came to the same impairment
recommendation, their diagnoses are vastly different. The Office of Judges also stated that Dr.
Smith and Dr. Miller both gave detailed accounts of Mr. Crew’s treatment subsequent to his head
injury while Dr. Hasan did not.


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        The Office of Judges next noted that Mr. Crew was an inpatient at Charleston Area
Medical Center for ten days following his compensable injury. It further noted that he has
experienced a myriad of neurological and psychological symptoms following the injury. The
Office of Judges concluded that the evidence shows Mr. Crew suffered a severe head injury and
though he was released from a neurological stand point, he has consistently sought psychological
treatment. Dr. Miller’s opinion was determined to be inconsistent with Mr. Crew’s treatment
records and evaluations. The Office of Judges stated that he was the only physician of record to
find symptom magnification or a somatoform disorder. However, the Office of Judges
acknowledged that Dr. Smith found elevated somatic test scores but determined they did not rise
to the level of a disorder. Lastly, the Office of Judges stated that Dr. Miller is the only physician
of record to question Mr. Crew’s diagnosis of post-traumatic stress disorder. The Office of
Judges ultimately determined that Dr. Miller’s conclusions were inconsistent with the evidence
and could not be used as a basis to determine Mr. Crew’s impairment.

        The Office of Judges next found that Dr. Hasan’s report lacked detail and was called into
question by the Office of Judges in a prior Order. In that case, the Office of Judges rejected Dr.
Hasan’s conclusion that Mr. Crew was at maximum medical improvement and required no
further treatment. In the case at bar, the Office of Judges determined that Dr. Hasan failed to
mention the majority of Mr. Crew’s psychiatric history. He also did not perform
neuropsychological testing. Finally, the Office of Judges determined that Dr. Hasan failed to
explain in detail how he arrived at his finding of 5% impairment. He reported that Mr. Crew
operated with a global assessment of functioning score of fifty, which according to West
Virginia Code of State Rules § 85-20-Exhibit B (2006) indicates impairment between 15% and
29%. The Office of Judges reasoned that while it was possible to have a global assessment of
functioning score of fifty and still only have 5% impairment, Dr. Hasan did not provide an
explanation for his findings.

        The Office of Judges determined that while Dr. Smith was the only physician of record to
arrive at a diagnosis of major neurocognitive disorder due to a traumatic brain injury, his
diagnosis was consistent with Mr. Crew’s injury and treatment history. The Office of Judges
found that he worked full time, had never been fired or disciplined, and enjoyed his job prior to
the injury. Following the compensable injury, Mr. Crew had difficulty returning to the tunnel in
which he was injured. He attempted to return to work but was unable to perform his preinjury
job. He also suffers from nightmares, tremors, depression, irritability, poor concentration, and
social withdrawal. The Office of Judges stated that while there were some discrepancies
regarding his full-scale IQ, the preponderance of the evidence indicates Mr. Crew suffered a life
altering event. Dr. Smith’s recommendations were found to be consistent with West Virginia
Code of State Rules § 85-20 (2006). The Office of Judges determined that cognitive disorders
from brain injury are not rated using West Virginia Code of State Rules § 85-20; therefore, Dr.
Smith correctly applied the American Medical Association’s Guides when he concluded that Mr.
Crew suffered 14% impairment for cognitive dysfunction. The Office of Judges also found that
Dr. Smith correctly used West Virginia Code of State Rules § 85-20 to find that he had 10%
impairment for post-traumatic stress disorder. The Office of Judges concluded that even though
Dr. Smith’s recommendations are higher than Dr. Hasan’s and Dr. Miller’s, Dr. Smith’s opinions
are consistent with Mr. Crew’s medical and psychiatric history. The Board of Review adopted
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the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
April 27, 2015.

       On appeal, Brayman Construction argues that Dr. Smith was the only physician of record
to diagnose major neurocognitive disorder. It asserts that the other evaluating physicians
diagnosed depression and/or post-traumatic stress disorder. It further argues that all of Mr.
Crew’s psychological treatment has been focused on depression and post-traumatic stress
disorder since all physicians, except Dr. Smith, found that he had fully recovered from the closed
head injury. Lastly, Brayman Construction noted that Mr. Crew’s treating psychiatrist did not
make diagnoses of major neurocognitive disorder or traumatic brain injury. Mr. Crew argues
that Dr. Miller’s findings were properly determined to be less reliable than those of Dr. Smith.
He asserts that Dr. Miller was the only physician of record to find evidence of malingering or
symptom magnification, and his opinion is inconsistent with the evidence of record.

        After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Dr. Smith found 23% impairment as a result of the compensable injury, and
his opinion is supported by the evidence of record. Mr. Crew sustained a severe injury that
resulted in cognitive and psychological impairment. The Office of Judges was correct to find that
Dr. Smith’s opinions are the most consistent with the evidentiary record, and the Board of
Review was correct to affirm the Office of Judges’ Order.

        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: June 24, 2016


CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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