Appeal No. 2052451 Claim No. 2015032060
Peter D'Amour, by Lawrence E. Sherman, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Combined Insurance Co. of
America AT, by Jane Ann Pancake, its attorney, filed a timely
issue on appeal is additional compensable conditions. The
claims administrator held the claim compensable for open
wound of the left wrist and denied the addition of
concussion, neck strain, post-concussion syndrome, headache,
fatigue, and post-traumatic brain injury to the claim on July
27, 2015. The Office of Judges modified the decision in its
January 4, 2018, Order and also held the claim compensable
for adjustment disorder with anxious mood. The Order was
affirmed by the Board of Review on June 29, 2018. 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. This case satisfies the
"limited circumstances" requirement of Rule 21(d)
of the Rules of Appellate Procedure and is appropriate for a
memorandum decision rather than an opinion.
D'Amour, a salesman, was injured in the course of his
employment on May 29, 2015, when he knocked on a door and was
attacked by four dogs. The Employee's and Physician's
Report of Injury indicates Mr. D'Amour injured his left
wrist when he knocked on a door and was attacked by four dogs
and one of them bit him. The diagnosis was listed as open
wound of the wrist.
29, 2015, treatment note from War Memorial Hospital indicates
Mr. D'Amour had a small puncture wound to his left wrist
after being bitten by a dog. He reported that he knocked on a
door when four dogs burst out and attacked him. One of the
dogs bit his wrist and Mr. D'Amour fell backward out of
the gate and hit his head on the sidewalk. He was diagnosed
with dog bite of the left wrist and sent home. A CT scan was
performed on June 3, 2015, for a history of concussion,
headache, and concussion symptoms status post fall. There
were no abnormalities detected.
July 20, 2015, letter, John Veltman, M.D., stated that he was
deferring any issues related to post-traumatic brain injury
to Mark Landrio, M.D. Dr. Veltman felt that Dr. Landrio had a
better understanding of post-traumatic brain injuries and
would be more beneficial to Mr. D'Amour. The claims
administrator held the claim compensable for open wound of
the left wrist and denied the addition of concussion, neck
strain, post-concussion syndrome, headache, fatigue, and
post-traumatic brain injury to the claim on July 27, 2015.
28, 2015, treatment note by Stacy Konya, FNP-C, with Dr.
Landrio's office, indicates Mr. D'Amour hit his head
when he tripped over a gate after being attacked by dogs. His
head was not bothering him at the emergency room that day but
when he left it took him two hours to get home. He lives
thirty minutes from the hospital and could not recall why it
took him so long to get home. Mr. D'Amour developed a
headache in the back of his head. He reported that he has
mild dizziness and light sensitivity when he gets headaches.
Mr. D'Amour reported that he has difficulty with short
term memory, focusing, and concentrating. The diagnosis was
post-concussion syndrome. On July 30, 2015, Dr. Landrio
performed an EEG which was normal. A brain MRI taken on
August 6, 2015, showed abnormal white matter signal in the
left front parietal region, which could be normal for Mr.
D'Amour's age. There was no evidence of acute injury
or hemorrhage and no other significant findings. Mr.
D'Amour was released to return to work by Dr.
Landrio's office on September 14, 2015.
Wilken, Ph.D., performed a neuropsychological evaluation on
November 3, 2015, in which he found that Mr. D'Amour had
difficulty learning new verbal information. His visual
learning was also poor. Dr. Wilken stated that Mr.
D'Amour's post-concussive symptoms needed to be
reduced. Mr. D'Amour reported depression and anxiety as
well. He stated that his post-concussive symptoms were
effecting his job performance. Dr. Wilken found that Mr.
D'Amour's cognitive problems appeared to be the
result of the concussion he sustained on May 29, 2015, though
he recommended follow up to rule out other conditions. He
also recommended counseling with a focus on stress
management, anxiety reduction, and coping skills. He strongly
advised that Mr. D'Amour undergo cognitive rehabilitation
therapy. He also recommended that he take a short leave of
absence from work or reduce his hours for a short time.
January 7, 2016, Mr. D'Amour testified in a hearing
before the Office of Judges that there were two witnesses to
his head injury, Jason Miller and the homeowner, Larry Payne.
Mr. D'Amour stated that he drove home from the hospital
and did not arrive home until approximately two and a half
hours later. He could not remember why it took him so long to
get home. The next morning, he went to an appointment and
again lost time on the way home. Mr. D'Amour asserted
that he had short term memory loss, daily headaches,
confusion, and irritability. He also had a headache that
lasted for two months until he was prescribed Nortriptyline,
which finally cured the headache. Mr. D'Amour testified
that he was also suffering from depression since he could not
work. He was released to return to work, was hired for a new
company, and was fired because he was unable to do the work.
He stated that he still suffers from depression, confusion,
and difficulty recalling words but he no longer has
February 4, 2016, neuropsychiatric forensic evaluation, Bobby
Miller, M.D., diagnosed adjustment disorder with anxious
mood, personality disorder, and symptom exaggeration. Dr.
Miller opined that Mr. D'Amour may have met the criteria
for a cognitive disorder in the past but he no longer
displays those symptoms. He stated that he agrees with Dr.
Landrio's assessment and does not think the headaches are
due to a traumatic brain injury. Mr. D'Amour had reached
maximum medical improvement.
September 30, 2016, independent medical evaluation, Alex
Ambroz, M.D., diagnosed post-concussion syndrome and major
depression. He concluded that Mr. D'Amour has ongoing,
chronic problems following the head injury on May 29, 2015.
He found that prior to the injury, Mr. D'Amour was fully
capable of doing his job and had no psychiatric conditions.
As a result of the compensable injury, Dr. Ambroz opined that
Mr. D'Amour was disabled. He still had chronic symptoms
and was unable to work. Dr. Ambroz assessed 15% impairment.
October 3, 2016, Ahmed Faheem, M.D., performed a
psychological evaluation in which he diagnosed adjustment
disorder with depressed mood and anxiety and post-concussion
syndrome. He noted that a psychiatric exam was performed by
Crystal Whittington, M.A. Dr. Faheem stated that Mr.
D'Amour obviously has some cognitive changes and
neurological impairment as well as lingering residual
symptoms. He has been unable to return to work. He stated
that he did not believe that Mr. D'Amour had a
personality disorder and that his personality changes are
related to his traumatic brain injury. He disagreed with Dr.
Miller's neuropsychiatric forensic evaluation. Ms.
Whittington stated in her report that Mr. D'Amour's
testing was "essentially valid" but noted that he
had some exaggeration. Ms. Whittington stated that the
testing showed some impairment but was overall average for
his age and education. Mr. D'Amour reported difficulty
with everyday functioning, but Ms. Whittington concluded that
it was likely the result of depression.
October 26, 2016, treatment note by Dr. Ambroz indicates Mr.
D'Amour returned to work. The assessments were
post-concussion syndrome and depression. Dr. Wilken testified
in a deposition on November 16, 2016, that he evaluated Mr.
D'Amour and found that he had problems with hand-eye
speed, getting out words quickly, and solving problems in his
head. He opined that Mr. ...