Appeal No. 2052368) (Claim No. 2016001501)
Christopher Franklin, by Reginald D. Henry, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Cramer Security &
Investigations, by Jane Ann Pancake and Jeffrey B. Brannon,
its attorneys, filed a timely response.
issues on appeal are compensability of additional conditions
and medical benefits. The claims administrator denied the
addition of post-traumatic headaches, memory loss, and
concussion as additional compensable conditions in the claim
on March 21, 2017. On May 18, 2017, it denied a request for a
referral to Samrina Hanif, M.D. The claims administrator
denied authorization of medical treatment at MedExpress on
April 30, 2017, in its May 23, 2017, decision. The Office of
Judges affirmed the decisions of the claims administrator in
its December 1, 2017, Order. The Order was affirmed by the
Board of Review on May 25, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Franklin, a security guard, was injured in a motor vehicle
accident in the course of his employment on July 3, 2015.
Treatment notes the following day from Plateau Medical Center
emergency room indicate Mr. Franklin reported a low speed car
accident that occurred when he swerved to avoid hitting a
deer. He was wearing a seatbelt and the airbags did not
deploy. It was noted that there was no loss of consciousness.
Mr. Franklin was diagnosed with head injury, cervical sprain,
and hip contusion. A CT scan of the head showed a
heterogeneous appearance of the frontal bone due to an old
injury or surgery. Mr. Franklin was given discharge
instructions for concussion and brain injury, hip injury, and
Employee's and Physician's Report of Occupational
Injury, completed on July 8, 2015, indicates Mr. Franklin was
in a motor vehicle accident while trying to avoid a deer. The
physician's section was completed by Plateau Medical
Center and lists the diagnoses as head injury, cervical
sprain, and hip contusion. The claim was held compensable for
head injury, cervical sprain, and hip contusion on October
21, 2015. On January 10, 2016, a second Employee's and
Physician's Report of Occupational Injury indicates Mr.
Franklin injured his head, neck, back, and hip when he lost
control of his truck and hit a tree due to defective
equipment. He also reported that he sustained a concussion
and brain injury. The physician's section was completed
at MedExpress and listed the diagnoses as cervical sprain and
unspecified head injury.
Franklin sought treatment from MedExpress on March 2, 2016,
stating that he had seen no improvement since the compensable
injury. He reported neck pain, shoulder pain, foot pain, and
headaches. Mr. Franklin also reported difficulty with memory.
Examination was unremarkable except for pain upon cervical
range of motion. He was diagnosed with cervical
radiculopathy, cervical sprain, head injury, and lumbar
Franklin sought treatment from Dr. Hanif, a neurologist, on
March 16, 2016. Dr. Hanif noted that he reported headaches
since the compensable injury. He also alleged some memory
loss. Mr. Franklin stated that he hit his head in the motor
vehicle accident and lost consciousness for a few minutes.
Dr. Hanif diagnosed post-traumatic headaches and recommended
an EMG of the left arm. The EMG was performed on May 6, 2016,
and was normal. Mr. Franklin returned to Dr. Hanif on May 19,
2016, and reported a host of symptoms including headaches,
confusion, dizziness, fainting, irritability, insomnia, and
anxiety. However, Mr. Franklin's neurological examination
was normal. Dr. Hanif diagnosed post-traumatic headaches,
memory loss, and frequent headaches. She opined that Mr.
Franklin had reached maximum medical improvement from a
Grady, M.D., performed an independent medical evaluation on
October 19, 2016, in which he noted that Mr. Franklin had a
history of seizures in childhood as well as congenital
cranial stenosis. A neurological evaluation was unremarkable.
Dr. Grady opined that the compensable injury caused a
cervical sprain. Dr. Grady noted that Mr. Franklin reported
cognitive issues and opined that they would have to be
evaluated by a neurologist to determine if they were the
result of the compensable injury or his preexisting
neurological abnormalities. Dr. Grady found that Mr. Franklin
had reached maximum medical improvement. He assessed 5%
impairment for cervical range of motion restrictions.
Franklin returned to MedExpress on November 3, 2016. At that
time he had reduced cervical range of motion. He was
diagnosed with left shoulder pain, peripheral nervous system
disorder, idiopathic epilepsy, headaches, and neck pain. Dr.
Hanif completed a diagnosis update on March 3, 2017, in which
she requested that post-traumatic headaches, memory loss, and
concussion be added to the claim. The claims administrator
denied the request on March 21, 2017.
April 30, 2017, Mr. Franklin returned to MedExpress and
stated that he wanted seizures added to his workers'
compensation claim. He stated that his family had started to
notice him staring off and he does not realize when that is
happening. Mr. Franklin was diagnosed with amnesia and
released to return to work with no operating of heavy
equipment. The claims administrator denied a request for a
referral to Dr. Hanif on May 19, 2017. On May 23, 2017, it
denied authorization of the April 30, 2017, MedExpress visit.
Miller, M.D., performed an independent neuropsychiatric
forensic evaluation on July 3, 2017, in which he noted that
Mr. Franklin reported wrecking his vehicle and losing
consciousness for five minutes. He stated that he lost
traction going around a curve and was not sure if there was a
deer present or not. Dr. Miller noted that Mr. Franklin had a
seizure disorder until age eight and surgery at three months
old due to cranial stenosis. Mr. Franklin reported a host of
symptoms to Dr. Miller including headaches, memory loss,
sleep issues, dizziness, depression, personality changes,
fatigue, anxiousness, confusion, seizures, racing thoughts,
and anger issues. Dr. Miller performed an array of
neuropsychological tests and found that the testing supports
intact neuropsychological function without deficits. He
opined that Mr. Franklin's headaches are likely a result
of myofascial strain. Dr. Miller further opined that the
evidence fails to support diagnoses of post-traumatic
headaches, memory loss, or concussion. Dr. Miller diagnosed
malingering and recommended Mr. Franklin see a neurologist
for his staring spells. Dr. Miller opined, however, that the
spells are unlikely to be related to the compensable injury.
Franklin testified in a deposition on July 13, 2017, that he
remembered part of the motor vehicle accident but not all of
it. He stated that he hit his head and lost consciousness. He
also stated that he returned to work immediately and was told
to take it easy. Mr. Franklin alleged that he was fired for
sleeping on the job but that he was just stretched out at the
time the pictures of him sleeping in his truck were taken. He
testified that his memory loss and headaches began
immediately after the injury but the seizures did not start
until a little over a year later.
October 6, 2017, Robert Walker, M.D., performed an
independent medical evaluation in which he noted that Mr.
Franklin reported headaches and short term memory loss since
the compensable injury. Dr. Walker performed a mental status
evaluation, which was normal. He assessed 8% cervical