Appeal No. 2050768) (Claim No. 2012014927)
Zachary Ewing, by Patrick K. Maroney, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. McElroy Coal Company, by Denise D. Petino,
Christopher J. Prezioso, and Jessica Spencer Benedict, its
attorneys, filed a timely response.
issue on appeal is whether the diagnosis unspecified sleep
disturbance should be added as a compensable component of the
claim. This appeal originated from the June 10, 2014, claims
administrator's decision denying the request to
unspecified sleep disturbance to the claim. In its August 21,
2015, Order, the Workers' Compensation Office of Judges
affirmed the decision. The Board of Review's Final Order
dated March 23, 2016, affirmed the Order of the Office of
Judges. 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
Ewing, a coal miner, was injured in the course of his
employment on October 22, 2011, when a conveyor belt snapped,
causing a metal hook to strike his face. Mr. Ewing went to
Reynold Memorial Hospital for treatment. A CT scan of his
head revealed a fracture of the right maxillary sinus into
the right orbit, soft tissue swelling, and sinusitis. A CT
scan taken a few days later revealed a blow-out fracture of
the orbital floor. On October 27, 2011, Mr. Ewing underwent
surgery to repair the fracture. The claims administrator
initially held the claim compensable for abrasion to the
face, neck, and scalp; enclosed fracture of the mala and
maxillary bones; and closed fracture of the orbital floor.
Ewing began experiencing headaches and facial pressure after
his surgery, a side effect the surgeon had warned him about.
He continued to see various doctors over the course of the
next two years for his migraines and sinus issues. On January
25, 2013, Mr. Ewing saw Gregory Wood, M.D., for complaints of
being tired all the time and not sleeping well. Dr.
Wood's assessment was depression.
April 25, 2014, David Watson, M.D., evaluated Mr. Ewing. Mr.
Ewing reported that he continued to suffer from headaches
seven days a week. He stated that he gets very little, poor
sleep. Mr. Ewing's wife believed she had witnessed Mr.
Ewing suffer from sleep apnea during the night. Dr. Watson
diagnosed Mr. Ewing with chronic migraines, chronic
post-traumatic headache, depression, and sleep disorder. He
recommended an MRI of the brain, neuropsychological testing,
and a sleep study based on Mr. Ewing's wife's reports
that she believed he suffered from sleep apnea.
6, 2014, Dr. Wood saw Mr. Ewing for continued complaints of
facial pressure and sinus issues. Dr. Wood reviewed Dr.
Watson's notes about Mr. Ewing's complaints of poor
sleep and his wife's belief that he suffered from sleep
apnea. Based in part on Dr. Watson's diagnosis, Dr. Wood
assessed sinusitis, orbit blow-out fracture, migraine
headaches, depression, and sleep apnea. He requested
authorization for an MRI of the brain and a sleep study.
J. Fadel, M.D., performed a utilization review to determine
whether Dr. Wood's request for an MRI and sleep study was
related to the compensable injury. He was also asked to
determine whether the diagnoses of unspecified migraine,
depression, and sleep disturbance should be added to the
claim. Dr. Fadel concluded the migraine and depression
diagnoses should be added but recommended denying the
addition of sleep disturbance to the claim. Dr. Fadel opined
that there is no evidence to support the idea that victims of
facial trauma can develop sleep apnea as a residual effect of
trauma. On June 10, 2014, the claims administrator denied the
request to add unspecified sleep disturbance as a compensable
component of the claim based on Dr. Fadel's review.
Office of Judges affirmed the claims administrator's
Order on August 21, 2015. The Office of Judges found that Mr.
Ewing failed to show by a preponderance of the evidence that
his sleep disturbance is causally related to the compensable
injury. Mr. Ewing was not diagnosed with a sleep disorder
until April 25, 2014, nearly two and a half years after the
compensable injury. The Office of Judges opined that from a
purely temporal standpoint, the record does not support a
causal relationship between the diagnosis and the compensable
injury. Further, Dr. Watson based his diagnosis on Mr.
Ewing's subjective complaints and Mrs. Ewing's
opinion that her husband suffered from sleep apnea. Dr.
Wood's request for authorization is largely based on Dr.
Watson's diagnosis. However, Mr. Ewing's subjective
complaints and Mrs. Ewing's opinion are not sufficient to
establish a medical diagnosis of sleep disturbance in the
claim. The Office of Judges noted that even if Mr. Ewing does
suffer from a sleep disorder, there is no medical evidence of
record linking that diagnosis to the compensable injury. Dr.
Fadel was the only doctor to directly comment on a causal
connection and he opined that there was no relationship
between the sleep disturbance and the compensable injury.
Accordingly, the Office of Judges denied the addition of
sleep disturbance to the claim. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on March 23, 2016.
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review. Mr. Ewing was not
diagnosed with sleep disturbance until nearly two and a half
years after the compensable injury. There is no medical
evidence of record that establishes a causal connection
between the sleep disturbance and the compensable injury.
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: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...