                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

TERRI DAVIS,
                                                                                         FILED
Claimant Below, Petitioner                                                              June 26, 2020
                                                                                  EDYTHE NASH GAISER, CLERK

vs.)   No. 19-0382 (BOR Appeal No. 2053671)                                       SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
                   (Claim No. 2018004279)

ROADSAFE HOLDINGS, INC.,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Terri Davis, by Counsel Patrick K. Maroney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Roadsafe Holdings, Inc.,
by Counsel Maureen Kowalski, filed a timely response.

       The issues on appeal are temporary total disability and medical benefits. The claims
administrator closed the claim for temporary total disability benefits on February 7, 2018. On
February 16, 2018, the claims administrator denied referrals to neurology and ophthalmology. The
claims administrator denied authorization of an EEG on March 23, 2018. The Office of Judges
affirmed the decisions in its November 20, 2018, Order. The Order was affirmed by the Board of
Review on March 25, 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.

        Ms. Davis was injured in the course of her employment on August 16, 2017, when she was
struck on the back of the head by a concrete truck chute. She was treated at Thomas Memorial
Hospital for a head injury that day and reported vision changes and blurry vision. The diagnoses
were listed as head injury and hydrocephalus. A CT scan of Ms. Davis’s brain was performed on
August 17, 2017, and showed gross hydrocephalus, absent septum pellucidum, likely heterotopic
gray matter , large right posterior fossa fluid collection with mass effect upon the cerebellum, right

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cerebellar tonsillar herniation, thickening of the quadrigeminal plate, and partial calcification and
possible septo-optic dysplasia.

        Ms. Davis sought treatment on August 20, 2017, at Montgomery General Hospital for head
pain, nausea, vertigo, difficulty thinking, neck pain, light and sound sensitivity, and difficulty
sleeping. A cervical CT scan showed advanced multilevel degenerative arthritis and disc disease.
A CT scan of the head showed severe dilation of the lateral ventricles, possible aqueductal stenosis,
bilateral periventricular hypodensity, a large right cerebellar hypodensity, and right cerebella
hypoplasia. Ms. Davis was diagnosed with right cerebellar post-traumatic hematoma, severe
diffuse ventriculomegaly, and C6-C7 disc bulge. She was transferred to Charleston Area Medical
Center (CAMC) for neurological services. The treatment note from CAMC General Hospital
indicates Ms. Davis reported headache, nausea, and vision changes with blurring. Her family told
physicians that she had experienced slow thought processes for a few months. Ms. Davis was
admitted to neurosurgery. An MRI of the cervical spine showed degenerative joint disease and
degenerative disc disease. A CT scan of the head showed marked ventriculomegaly, likely chronic
central volume loss, and chronic appearing arachnoid cyst.

        The claim was held compensable for contusion, laceration, and hemorrhage of the
cerebellum, without loss of consciousness and cervical disc displacement at C6-7 on August 28,
2017. On September 14, 2017, Ms. Davis was treated at Brain & Spine Specialists for pain in her
head that radiated into her neck, fatigue, imbalance, persistent nasal drainage, mood swings,
depression, weakness, and confusion. Ms. Davis also saw John Orphanos, M.D., that day. Dr.
Orphanos diagnosed arachnoid cyst with ventriculomegaly and post-concussion syndrome. He
recommended a referral to neurology and ophthalmology to evaluated for papilledema. He opined
that any symptoms from the large ventriculomegaly were chronic and not related to the work
injury.

       A September 25, 2017, treatment note by Mary Jenkins, M.D., Ms. Davis’s treating
physician, indicates diagnoses of post-concussion syndrome, cerebro ventriculomegaly, and
headaches. Ms. Davis was to remain off of work until evaluation by a neurologist and orthopedist.

       Syam Stoll, M.D., performed an independent medical evaluation on December 4, 2017, in
which he assessed cervical sprain/strain and post-concussion syndrome. Dr. Stoll opined that the
diagnosis of normal pressure hydrocephalus preexisted the compensable injury and was therefore
not work-related. Dr. Stoll further determined that Ms. Davis’s current symptoms were not related
to the compensable injury. A CT scan showed extensive preexisting normal pressure
hydrocephalus, an arachnoid cyst, and cerebella hyperplasia. Dr. Stoll stated that these findings
would not be present due to trauma without also seeing evidence of intracranial bleeding or
hemorrhage. Dr. Stoll opined that Ms. Davis had reached maximum medical improvement for her
compensable injuries.

       Ms. Davis was treated by Huselyn Kadikoy, M.D., at Ophthalmology Eye Institute, on
December 7, 2017. She reported double vision, blurriness, unfocused vision, and constant head
pain. Dr. Kadikoy diagnosed convergence insufficiency and probable decompensation of
exophoria. Dr. Kadikoy gave Ms. Davis optical exercises to perform at home and opined that she
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may need glasses if her vision did not improve. He stated that there were visual field defects of
unclear etiology suggestive of possible mild traumatic optic neuropathy. On December 11, 2017,
Ms. Davis was treated at AMG Ophthalmology at CAMC. She was diagnosed with double vision
and visual disturbance. Ms. Davis was advised to go to the emergency room to be evaluated by a
neurosurgeon.

       On January 3, 2018, Ms. Davis treated with David Gloss, M.D., at CAMC Neurology. She
reported dizziness, headaches, and confusion. Dr. Gloss diagnosed ventriculomegaly, medication
overuse, headaches, post-concussion syndrome, and staring spells. He opined that the
ventriculomegaly was found to be chronic in nature. Ms. Davis was referred for an EEG.

        Dr. Stoll performed an independent medical evaluation on January 30, 2018, in which he
found that Ms. Davis had reached maximum medical improvement for her compensable injuries
and assessed 8% cervical spine impairment. He opined that he could not identify any neurological
changes. Based on Dr. Stoll’s report, the claims administrator closed the claim for temporary total
disability benefits on February 7, 2018.

       Ms. Davis returned to Dr. Gloss on February 15, 2018, for headaches, which Dr. Glass
opined were due in part to medication overuse. Ms. Davis was asked to stop all treatment for
headaches for two to three weeks. The diagnoses were headaches and staring spells.

        A record review was performed on February 16, 2018, by Ronald Fadel, M.D., who opined
that the compensable conditions are symptoms rather than diagnoses. He stated that the symptoms
indicate concussion as well as a central nervous system pathology. He stated that it was not
unreasonable to conclude that Ms. Davis sustained a concussion as a result of the compensable
injury. However, he also found that in the course of treatment for the compensable injury, it was
discovered that she has a preexisting condition which required neurological evaluation and a
possible shunt to spinal fluid from the brain. Dr. Fadel opined that any further treatment should be
handled under Ms. Davis’s private health care. The claims administrator denied a referral to
neurology and ophthalmology on February 16, 2018.

        Dr. Jenkins completed a form on February 22, 2018, indicating that Ms. Davis was unable
to return to work due to her compensable injury. The claims administrator denied an EEG on
March 23, 2018. On April 11, 2018, Dr. Orphanos opined in a treatment note that it was unclear
why Ms. Davis continued to experience headaches, dizziness, and gait instability. Dr. Orphanos
diagnosed ventriculomegaly and arachnoid cyst with possible post-concussion syndrome. He
recommended another MRI to check for possible changes.

        Dr. Jenkins completed an attending physician’s report on May 1, 2018, in which she stated
that Ms. Davis was still seeing a neurologist and neurosurgeon. Dr. Jenkins opined that she was
unable to work due to mental and physical disability. She stated that Ms. Davis was temporarily
and totally disabled from August 16, 2017, to December 17, 2017. On May 18, 2018, a brain MRI
was performed for congenital malformations of Ms. Davis’s brain. The MRI showed fairly severe
ventriculomegaly of the lateral and third ventricle. There were no acute findings.

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        In its November 20, 2018, Order, the Office of Judges affirmed claims administrator’s
decisions closing the claim for temporary total disability benefits, denying referral to neurology
and ophthalmology, and denying an EEG. The Office of Judges found that Dr. Stoll determined
Ms. Davis reached maximum medical improvement in his January 30, 2018, evaluation. Dr.
Jenkins was the only physician of record to state that Ms. Davis could not return to work due her
compensable injury. However, she also completed an attending physician’s report which indicated
Ms. Davis was temporarily and totally disabled from August 16, 2017, through December 7, 2017.
The Office of Judges questioned whether Dr. Jenkins believed Ms. Davis was temporarily and
totally disabled past December 7, 2017. Further, the Office of Judges found evidence that Ms.
Davis had preexisting conditions, which may be preventing her from returning to work. In an
August 21, 2017, CAMC treatment note, it was noted that Ms. Davis’s family reported that she
had experienced slow thought processes for a couple of months. Ms. Davis was diagnosed with
cerebro ventriculomegaly, normal pressure hydrocephalus, arachnoid cyst, and cerebella
hyperplasia. The Office of Judges also found that though Ms. Davis’s vision and equilibrium
problems clearly worsened after the compensable injury, a preponderance of the evidence indicates
her inability to return to work was the result of preexisting conditions.

          The Office of Judges questioned why Ms. Davis’s protest to the February 16, 2018, was
still in litigation. Ms. Davis requested referrals to neurology and ophthalmology on September 25,
2017. She was seen by Dr. Kadikoy, an ophthalmologist, on December 7, 2017. On January 3,
2018, Ms. Davis was treated by Dr. Gloss, a neurologist. The Office of Judges therefore determined
that the protest to the February 16, 2018, claims administrator’s decision was moot since the
referrals had already occurred. Finally, the Office of Judges found that the request for an EEG was
made by Dr. Gloss to evaluate Ms. Davis’s staring spells. There was no evidence that the staring
spells are related to the compensable injury. Therefore, the Office of Judges affirmed the denial of
an EEG. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order on March 25, 2019.

         After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Ms. Davis was found to be at maximum medical improvement
on December 4, 2017, by Dr. Stoll. Dr. Fadel also found that she had reached maximum medical
improvement and opined that any further medical treatment should be conducted under her private
health insurance. The only physician of record to opine that Ms. Davis was temporarily and totally
disabled due to the compensable injury was Dr. Jenkins. The weight of the medical evidence
supports the reports of Drs. Stoll and Fadel. The Board was also correct in finding that the
requested referrals had already occurred and therefore, Ms. Davis’s protest to the February 16,
2018, claims administrator’s decision was moot. Finally, the request for an EEG failed to indicate
that it was necessary medical treatment for a compensable injury. It was therefore properly denied.

        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.


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                                  Affirmed.
ISSUED: June 26, 2020


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

NOT PARTICIPATING:

Justice Margaret L. Workman




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