                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS
                                                                                    FILED
DENISE O’CONNOR,                                                                   March 30, 2017
Claimant Below, Petitioner                                                     RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)     No. 16-0310	 (BOR Appeal No. 2050861)
                     (Claim No. 2014015546)

ST. MARY’S MEDICAL CENTER
HOME HEALTH SERVICES, LLC,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Denise O’Connor, by Edwin Pancake, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. St. Mary’s Medical Center Home
Health Services, LLC, by Lisa Warner Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 3, 2016, in
which the Board affirmed a September 24, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 21, 2015,
decision denying a request for authorization of additional temporary total disability benefits from
July 18, 2014, through January 12, 2015. 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.

       Ms. O’Connor was injured on November 1, 2013, while assisting a patient during the
course of her employment as a registered nurse. On November 4, 2013, a Report of Injury was
completed. The Report of Injury indicated that Ms. O’Connor sustained a neck sprain and
unspecified sprain of her shoulder/arm.1 Following a successful manipulation of her left shoulder

1
    An Order holding the claim compensable was not introduced into evidence.
                                                1
under anesthesia, Ms. O’Connor was released to return to work beginning on June 23, 2014, by
Charles Giangarra, M.D., her orthopedic surgeon.

        Subsequently, Ms. O’Connor sought treatment with Paul Ferguson, M.D., who noted on
July 18, 2014, that she was complaining of neck pain, headaches, and limb pain. Dr. Ferguson
noted that Ms. O’Connor reported that she has been experiencing neck pain, headaches, and left
upper extremity pain for an extended amount of time, but noticed an increase in her symptoms
following a C3-4 fusion performed in 2009. He also noted the presence of disc disease at C4-5
and opined that she suffers from cervical dystonia, which he further opined is likely the cause of
her current symptoms.

        On September 17, 2014, the claims administrator closed Ms. O’Connor’s claim on a
temporary total disability basis based upon its finding that she was released to return to work in
June of 2014.2 On November 6, 2014, Dr. Ferguson completed a temporary total disability
benefits reopening application in which he listed Ms. O’Connor’s current diagnoses as cervical
radiculopathy resulting from a disc bulge, cervical dystonia, cervicogenic headaches, and a disc
bulge.3 Dr. Ferguson indicated that Ms. O’Connor was temporarily totally disabled from July 18,
2014, through January 12, 2015. On January 21, 2015, the claims administrator denied Dr.
Ferguson’s request to reopen the claim for further consideration of temporary total disability
benefits. Following the claims administrator’s decision, Ms. O’Connor was deposed on January
22, 2015. She testified that following the injury, she returned to work on June 17, 2014, but was
unable to continue working as a result of severe neck pain.

       In its Order affirming the January 21, 2015, claims administrator’s decision, the Office of
Judges held that Ms. O’Connor failed to demonstrate that she sustained an aggravation or
progression of her compensable injury, and has also failed to introduce a fact or facts not
previously considered, which would entitle her to a reopening of her claim for further

2
  The Office of Judges affirmed the claims administrator’s decision on April 10, 2015. The Board
of Review affirmed the Order of the Office of Judges on October 27, 2015. In Denise O’Connor
v. St. Mary’s Medical Center Home Health Services, LLC, No. 15-1127 (W.Va. Supreme Court,
October 26, 2016)(memorandum decision), we affirmed the Board of Review’s October 27,
2015, Order.
3
  Dr. Ferguson also submitted a diagnosis update request on November 6, 2014, in which he
requested that the diagnoses of cervical dystonia, cervicogenic headaches, and cervical
radiculopathy be added as compensable diagnoses. There is a handwritten note in the margin of
the diagnosis update request indicating that the primary diagnosis is a disc bulge. On November
21, 2014, the claims administrator denied Dr. Ferguson’s request to add cervical dystonia,
cervical radiculopathy, and cervicogenic headaches as compensable diagnoses. The claims
administrator did not enter a finding regarding the compensability of the disc bulge and Ms.
O’Connor did not raise the issue of the compensability of the disc bulge when appealing the
November 21, 2014, claims administrator’s decision. The Office of Judges also affirmed the
November 21, 2014, claims administrator’s decision in its April 10, 2015, Order. Additionally,
the Board of Review also affirmed the Order of the Office of Judges on October 27, 2015. In
Appeal No. 15-1127, we affirmed the Board of Review’s October 27, 2015, Order.
                                                2
consideration of temporary total disability benefits. The Board of Review affirmed the reasoning
and conclusions of the Office of Judges in its decision dated March 3, 2016. On appeal, Ms.
O’Connor asserts that the evidence of record demonstrates that she was temporarily totally
disabled from July 18, 2014, through January 12, 2015.

        The Office of Judges found that Ms. O’Connor’s deposition testimony demonstrates that
she was unable to continue working solely as a result of cervical spine impairments. Further, the
Office of Judges found that the reopening application for temporary total disability benefits was
predicated upon complaints associated with the diagnoses of cervical radiculopathy, cervical
dystonia, cervicogenic headaches, and a disc bulge. In Appeal No. 15-1127, we affirmed the
denial of a request to add those diagnoses as compensable components of the claim. We also
affirmed the denial of Ms. O’Connor’s request for additional temporary total disability benefits,
and found that her request arose from the very non-compensable diagnoses cited in the instant
appeal. In Appeal No. 15-1127, we also found that pursuant to West Virginia Code § 23-4-7a
(2005), Ms. O’Connor is ineligible for additional temporary total disability benefits because she
has been released to return to work, and did return to work, with respect to the compensable
injury. Finally, we note that Ms. O’Connor has failed to submit any evidence not considered by
this Court in our prior decision.

        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: March 30, 2017

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




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