Appeal No. 2051583) (Claim No. 2014021212)
Michael Winebrimmer, by Gregory S. Prudich, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. The Pinnacle Group, Inc., by
Daniel G. Murdock, its attorney, filed a timely response.
are two issues on appeal. First, whether the diagnoses of
brachial neuritis and depression should be added as
compensable components in the claim. Second, whether the
requested medical treatment should be approved. This appeal
arises from the claims administrator's decisions dated
January 15, 2015, February 10, 2015, and March 31, 2015,
denying the request for a referral to Harry Kornhiser, D.O,
for a psychiatric evaluation, denying the request for a
referral to a pain clinic for brachial neuritis, denying the
request for the authorization of the medication Lyrica, and
denying the addition of the diagnoses brachial neuritis and
depression as compensable conditions in the claim,
respectively. By Order dated September 22, 2016, the Office
of Judges affirmed the claims administrator's decisions.
The Board of Review affirmed the Order of the Office of
Judges on March 21, 2017. 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
Winebrimmer, a carpenter, sustained an occupational injury on
October 8, 2013, when he was carrying a heavy wooden beam up
a ladder. The ladder shifted, causing the beam to roll over
Mr. Winebrimmer's neck. Mr. Winebrimmer was taken to the
emergency room where he underwent a cervical MRI which
revealed disc herniations on the right at C5-6 and C6-7.
X-rays of the cervical spine revealed degenerative changes
and x-rays of the thoracic spine revealed diffuse osteopenia
and intervertebral disc space narrowing with osteophytic
lipping. The claims administrator held the claim compensable
for a right shoulder sprain on October 14, 2013.
the injury, Mr. Winebrimmer began seeking treatment from
Jennifer Cornelius, M.D. On November 11, 2013, Dr. Cornelius
examined Mr. Winebrimmer and diagnosed brachial neuritis. She
recommended that a nerve conduction study be performed, which
the claims administrator authorized on November 18, 2013. Mr.
Winebrimmer presented to Dr. Cornelius on December 11, 2013,
complaining of pain in his neck and right shoulder with
numbness into his right hand. Mr. Winebrimmer related that he
was feeling depressed and attributed it to the compensable
January 16, 2014, Mr. Winebrimmer underwent an EMG/nerve
conduction study which was performed by Celia McLay, D.O. Dr.
McLay interpreted the results as being normal and noted that
there was no evidence of peripheral nerve injury, brachial
plexus injury, or cervical radiculopathy in the right upper
extremity. Mr. Winebrimmer was subsequently examined by John
Feldenzer, M.D., on January 31, 2014, for complaints of neck
pain, arm and hand numbness, tingling, and weakness. Dr.
Feldenzer diagnosed acute cervical sprain, cervical
radiculitis, and cervical disc prolapse with radiculopathy.
Winebrimmer underwent an independent medical evaluation
performed by A.E. Landis, M.D., on February 26, 2014. Dr.
Landis opined that Mr. Winebrimmer sustained soft-tissue
injuries involving his neck and right shoulder. Mr.
Winebrimmer's symptoms appeared to be related to the
cervical spine rather than the right shoulder, although some
degree of symptom magnification was noted. Dr. Landis
recommended that Mr. Winebrimmer follow up with Dr. Feldenzer
and possibly undergo further diagnostic testing of the
cervical spine. He also recommended consideration for a
neuropsychiatric evaluation given Mr. Winebrimmer's
presentation at the time of the examination.
March and April of 2014, Mr. Winebrimmer continued treating
with Dr. Cornelius and complained of issues with anger and
depression which he attributed to the compensable injury. Dr.
Cornelius diagnosed depression and brachial neuritis. Dr.
Cornelius requested authorization for a consultation with a
pain clinic for brachial neuritis and for a referral to Dr.
Kornhiser for depressive disorder, which was approved by the
claims administrator on May 6, 2014. Mr. Winebrimmer
subsequently presented to Dr. Kornhiser on July 23, 2014, who
described Mr. Winebrimmer as suffering from a mood disorder
with depression due to brachial neuritis.
October 31, 2014, Mr. Winebrimmer was seen by Walid Azzo,
M.D., an orthopedic surgeon. Dr. Azzo noted that he reviewed
an EMG study which revealed abnormal brachial neuritis. He
found that Mr. Winebrimmer had not reached maximum medical
improvement and diagnosed him as suffering from a brachial
plexus injury and a herniated disc of the spine. Two months
later, Mr. Winebrimmer underwent another independent medical
evaluation which was performed by Paul Bachwitt, M.D., on
January 7, 2015. Dr. Bachwitt opined that Mr.
Winebrimmer's subjective findings were sparse and not
credible. He diagnosed Mr. Winebrimmer as having sustained a
contusion of the right side of his neck and right shoulder
with symptom magnification. Dr. Bachwitt found that Mr.
Winebrimmer had reached maximum medical improvement with no
impairment and saw no need for further treatment.
January 8, 2015, Mr. Winebrimmer returned to Dr. Cornelius
with complaints of worsening pain and requested a referral to
a psychiatrist. Dr. Cornelius diagnosed brachial neuritis and
depression and a recommended referral back to Dr. Kornhiser,
a referral to a pain specialist, and a prescription of the
medication Lyrica. Dr. Cornelius subsequently requested that
the diagnoses of brachial neuritis and depression be added as
compensable components of the claim. On January 15, 2015, the
claims administrator denied the request for a referral to Dr.
Kornhiser for a psychiatric evaluation for depression and
denied the request for a referral to a pain specialist for
brachial neuritis. On February 10, 2015, the claims
administrator denied the request for authorization of the
medication Lyrica. Finally, the claims administrator denied
the request to add brachial neuritis and depression as
compensable conditions in the claim on March 31, 2015. The
Office of Judges modified the January 15, 2015, claims
administrator's decision and authorized the request for a
psychiatric evaluation but affirmed the denial of the request
for a referral to a pain specialist regarding the diagnosis
of brachial neuritis. The Office of Judges subsequently
affirmed the denial of the request for authorization of the
medication Lyrica. However, the Board of Review noted that
these issues are dependent on the decision of whether
brachial neuritis and depression are compensable diagnoses, a
then-pending issue, and remanded the claim to the Office of
December 2, 2015, Mr. Winebrimmer underwent a psychiatric
independent medical evaluation performed by Bobby Miller,
M.D. Dr. Miller reviewed the medical record and performed a
mental status examination of Mr. Winebrimmer together with a
battery of psychological tests. Test results were interpreted
as revealing suspected malingering and suggested that Mr.
Winebrimmer was not a valid reporter of his symptoms. His
responses were atypical of persons with genuine psychiatric
disorders. Dr. Miller diagnosed undifferentiated somatoform
disorder, which he indicated is not compensable under West
Virginia Code of State Rules §85-20 (2006), together
with malingering and mixed personality traits versus
disorder. Dr. Miller specifically disagreed with a diagnosis
of depression and opined that it was unlikely that Dr.
Cornelius was aware that Mr. Winebrimmer was not a valid
reporter of his symptoms.
Winebrimmer underwent a final independent medical evaluation
performed by ChuanFang Jin, M.D., on December 17, 2015. Dr.
Jin diagnosed Mr. Winebrimmer as suffering from a history of
a right shoulder injury with diagnoses of right shoulder
sprain/strain, chronic neck pain with MRI evidence of
degenerative disease, and right radiculitis/radiculopathy
most likely due to degenerative cervical spine disease. Dr.
Jin saw no clinical evidence of brachial neuritis.
September 22, 2016, the Office of Judges affirmed the January
15, 2015; February 10, 2015; and March 31, 2015, claims
administrator's decisions. The Office of Judges first
addressed the issue of whether the diagnoses of brachial
neuritis and depression should be added as compensable
components of the claim. Regarding the diagnosis of brachial
neuritis, the Office of Judges noted that Dr. Cornelius was
the first and only physician to request that this diagnosis
be added to the claim. She referred Mr. Winebrimmer to Dr.
Feldenzer, who stated that he could not rule out a diagnosis
of brachial neuritis. Dr. Feldenzer recommended an EMG/nerve
conduction study be performed. Dr. McLay performed the test
and interpreted the results as demonstrating no evidence of a
brachial plexus injury. Subsequently, Mr. Winebrimmer
underwent several independent medical evaluations and three
of the evaluating physicians, Drs. Landis, Bachwitt, and Jin,
declined to diagnose brachial neuritis. The Office of Judges
noted that aside from Dr. Cornelius, only Dr. Azzo had
diagnosed brachial neuritis and it declined to adopt his
opinion as he interpreted an EMG study differently than the