Appeal No. 2052098) (Claim No. 2016004423)
Murray American Energy, Inc., by Aimee M. Stern and Denise D.
Pentino, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Carey
Fitzwater, by Reginald D. Henry, his attorney, filed a timely
issue on appeal is the addition of a compensable condition to
the claim. The claims administrator denied the addition of
major depression to the claim on January 19, 2017. The Office
of Judges affirmed the decision in its July 14, 2017, Order.
The Order was reversed by the Board of Review on January 16,
2018, and major depression was added to the claim. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Fitzwater, a coal miner, was injured in the course of his
employment on August 11, 2015, when he was electrocuted.
Treatment notes from Wheeling Hospital that day indicate Mr.
Fitzwater was shocked at work with 300 volts of electricity.
He reported pain in his back, left upper arm, chest, and
neck, as well as shortness of breath and numbness in the left
arm. Chest x-rays showed no abnormalities. A CT scan of the
head and neck was also normal. Mr. Fitzwater was diagnosed
with an electrical injury.
August 12, 2015, treatment note by Ross Tennant, FNP,
indicates Mr. Fitzwater had returned to full duty work. His
only complaint was some numbness and tingling in the left
hand, which was resolving. Mr. Tennant opined that Mr.
Fitzwater appeared to be recovering well and released him to
full duty work with no restrictions. Mr. Fitzwater submitted
a report of injury on August 13, 2015, which indicates he was
electrocuted. The diagnoses were listed as injury of the face
and neck, rupture of synovium, lower back pain, abnormal
involuntary movements, and painful respiration.
Fitzwater returned to Mr. Tennant on August 17, 2015, with
complaints of continued left arm numbness, which was
improving. However, Mr. Fitzwater was now experiencing
headaches after long periods of working. A treatment note by
Wadih Kabbara, M.D., dated September 1, 2015, states that Mr.
Fitzwater reported anxiety and pain. He had undergone some
physical therapy for his shoulder and it was improving. The
impressions were shoulder contusion, anxiety, and
Fitzwater followed up with Mr. Tennant on September 10, 2015,
and the treatment note indicates he had been having heart
palpitations over the previous few weeks. He had pain in his
left arm and hand. The diagnoses were electrical exposure,
heart palpitations, left forearm extensor muscle strain, and
left upper extremity numbness. An EKG was performed and
showed sinus bradycardia. Mr. Tennant ordered physical
therapy for the left forearm.
Fitzwater was admitted to Raleigh General Hospital on
September 21, 2015, following seizure and chest pain. Dr.
Kabbara's diagnoses at discharge were seizure disorder,
hypertension, and chest pain. On October 1, 2015, Mr.
Fitzwater was still having seizures and returned to the
hospital. The diagnoses were posttraumatic seizures and
episodic tension type headaches. The claims administrator
held the claim compensable for injury of the face and neck on
October 2, 2015. Painful respiration, hypermobility syndrome,
lumbago, and abnormal involuntary movements were denied as
October 6, 2015, Dr. Kabbara noted that Mr. Fitzwater was
still having seizures. He was diagnosed with electric shock;
sequela; and anxiety irritability, possibly depression
related. A treatment note by Georgianna Richards, M.D., dated
October 13, 2015, indicates Mr. Fitzwater reported constant
headaches and left arm numbness. He also reported seizures
and left side weakness. The diagnoses were convulsions, left
hemiparesis, electric shock, memory impairment, and chronic
November 3, 2015, follow up, Dr. Kabbara stated that Mr.
Fitzwater continued to have seizures. He had developed
anxiety and irritability, possible related to depression from
the trauma. A psychiatric evaluation was recommended and
performed by Khalid Hasan, M.D., on November 30, 2015. Dr.
Hasan noted that Mr. Fitzwater was suffering from depression
and anxiety. He also had problems with his memory and was
very forgetful. Mr. Fitzwater stated that he had been
depressed and despondent. Dr. Hasan diagnosed depressive
disorder, generalized anxiety disorder, and history of panic
disorder. A neuropsychiatric evaluation was recommended to
rule out cognitive problems.
20, 2016, Debra Mooney, DRM, with Dr. Hasan's office,
treated Mr. Fitzwater and stated that he reported continued
depression. He was diagnosed with major depressive disorder.
On July 15, 2016, he was seen for follow up. He was stable
and Ms. Mooney diagnosed recurrent major depression and
generalized anxiety disorder. The claims administrator added
unspecified abnormal involuntary movements, left sided
hemiplegia, and posttraumatic seizures to the claim on
September 7, 2016.
October 17, 2016, diagnosis update, the diagnoses were listed
as electrocution, pseudoseizures, and major depression. On
October 20, 2016, Omar Hasan, M.D., stated in a treatment
note that Mr. Fitzwater reported increased depression and
some irritability. Dr. Hasan diagnosed major depressive
disorder, anxiety disorder, and adjustment disorder with
mixed anxiety and depression. Mr. Fitzwater followed up with
Dr. Khalid Hasan on January 10, 2017, and indicated that he
was doing better, though the diagnoses remained major
depression and generalized anxiety disorder. The claims
administrator denied the addition of major depression to the
claim on January 19, 2017.
independent forensic psychiatric evaluation on April 12,
2017, Bobby Miller, M.D., noted that Mr. Fitzwater reported
left side weakness, seizures, clumsiness, tingling, numbness,
depression, anxiety, headaches, trouble concentrating, and
unstable emotions since his compensable injury. Mr. Fitzwater
denied any prior psychiatric history; however, Dr. Miller
noted a prior diagnosis of posttraumatic stress disorder and
complaints of anxiety, depression, and panic attacks at WVU
Medicine on October 11, 2011. Dr. Miller also found that at
the time of the August 11, 2015, injury, Mr. Fitzwater was
already taking Xanax. Dr. Miller diagnosed conversion
disorder and mixed personality disorder. He opined that Mr.
Fitzwater did not develop major depression as a result of the
compensable injury. He stated that Mr. Fitzwater had failed
on several antidepressants and that the most likely reason
for his mood instability ...