Appeal No. 2050861, Claim No. 2014015546
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
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.
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
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. Following a successful manipulation
of her left shoulder under anesthesia, Ms. O'Connor was
released to return to work beginning on June 23, 2014, by
Charles Giangarra, M.D., her orthopedic surgeon.
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.
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. 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. 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.
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 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,
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.
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
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