Appeal No. 2052941), (Claim No. 2009074390)
Veronica Myles, by Counsel J. Thomas Greene Jr., appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). West Virginia United
Health System, by Counsel Lisa Warner Hunter, filed a timely
issue on appeal is the reopening of the claim on a permanent
partial disability basis. On July 19, 2016, the claims
administrator denied reopening of the claim. The Workers
Compensation Office of Judges ("Office of Judges"),
reversed the claims administrator's decision and reopened
the claim on a permanent partial disability basis by Order
dated May 11, 2018. This appeal arises from the Board of
Review's Order dated September 26, 2018, in which the
Board of Review reversed and vacated the decision of the
Office of Judges. The Board of Review determined that Ms.
Myles is not entitled to reopening of her claim on a
permanent partial disability basis. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
Myles sustained an injury at work on January 11, 2009, when
she was struck in the face with a telemetry unit by a
patient. As a result of the injury, she developed headaches.
She was treated by Lori Stahara, PA-C, for her symptoms on
June 17, 2011. She was eventually diagnosed with chronic
August 11, 2011, Ms. Myles was examined by Prasadarao B.
Mukkamala, M.D., for an independent medical evaluation. Dr.
Mukkamala diagnosed her with a contusion of the face, scalp
and neck. He opined that she reached maximum medical
improvement and concluded that she could and should have
returned to work by January 31, 2009. Dr. Mukkamala further
concluded that she does not require any additional treatment
except for palliative medical management, which includes the
medical management of her headaches. For her headaches
resulting from the compensable injury, Dr. Mukkamala
recommended 3% whole person impairment. By Order dated
September 12, 2011, the claims administrator granted Ms.
Myles a 3% permanent partial disability award based upon Dr.
Mukkamala's report. Although Ms. Myles protested the
claims administrator's decision, the Office of Judges
affirmed the 3% award on September 27, 2012, and found that
she was not entitled to a greater permanent partial
Myles underwent an independent medical evaluation by Karl C.
Boone, D.C., on March 31, 2016. Dr. Boone diagnosed
post-traumatic headaches and chronic migraines without aura.
He noted that Ms. Myles previously received a 3% permanent
partial disability award for her persistent headaches. Dr.
Boone did not believe that her cervical spine complaints were
seriously addressed in the record. He noted that a cervical
spine MRI showed some degree of cervical disc involvement.
Dr. Boone stated that there was sufficient force to injure
Ms. Myles's cervical spine either from blunt trauma to
the head or the subsequent fall to the floor. He recommended
physical therapy with hopes of improving her headache
patterns and to wean her off of some of her medications. On
April 8, 2016, Ms. Myles requested to reopen her claim for
permanent partial disability benefits.
Myles was once again referred to Dr. Mukkamala for an
independent medical evaluation, which was conducted on May
18, 2016. Dr. Mukkamala noted that he had previously examined
Ms. Myles and concluded that she had reached her maximum
degree of medical improvement with 3% whole person impairment
for her compensable injury and post-traumatic headaches. Dr.
Mukkamala opined that she did not have any additional
impairment that was causally related to the compensable
injury. He noted that her headaches are multifactorial with
relation to causation. Initially, the headaches were at least
partially related to the compensable injury. However, Dr.
Mukkamala opined that the current symptoms and headaches are
mostly causally related to noncompensable issues such as
cervical spondylosis. Dr. Mukkamala stated that it is
possible that cervical spondylosis contributes to headaches;
however, he noted that her cervical spondylosis is naturally
occurring and not causally related to the compensable injury.
The claims administrator issued an Order on July 19, 2016,
granting no additional permanent partial disability award
based upon the independent medical evaluation by Dr.
Mukkamala. Ms. Myles protested the claims administrator's
decision and argued that her claim should have been reopened.
purposes of obtaining a reopening of a workers'
compensation claim under the provisions of West Virginia Code
§ 23-5-1a and § 23-5-1b, a claimant must show a
prima facie cause, which means nothing more than any
evidence which would tend to justify, but not compel, the
inference that there has been a progression or aggravation of
the former injury. Harper v. State Workmen's
Compensation Comm'r, 160 W.Va. 364, 364, 234 S.E.2d
779, 783 (1977). Where an injured employee makes application
in writing for further adjustment to the claim, and the
application discloses facts not theretofore considered by the
commissioner, and which if true, would entitle the claimant
to further benefits, the claimant is entitled to have the
claim reopened, and to have a determination of the matters
alleged in the application. Bostic v. State Compensation
Comm'r, 142 W.Va. 484, 96 S.E.2d 481 (1957).
Office of Judges found that the March 31, 2016, report from
Dr. Boone establishes a fact not previously considered in the
claim. Dr. Boone was of the opinion that, at the time of the
injury, there was sufficient force to injure the cervical
spine, which could be a cause of Ms. Myles's headaches.
The Office of Judges reversed the claims administrator's
July 19, 2016, denial of the request to reopen the claim on a
permanent partial disability basis. West Virginia United
Health System protested the decision.
Board of Review reversed and vacated the Order of the Office
of Judges dated May 11, 2018. The Board of Review found the
Office of Judges's analysis and conclusions to be clearly
wrong in light of the reliable, probative and substantial
evidence on the whole record. The Board of Review disagreed
with the reasoning that the cervical spine issues are new
facts that were not previously considered because Dr.
Mukkamala noted, in his report dated August 11, 2011, that he
found normal cervical range of motion, and no paracervical
muscle spasm or tenderness. The Board of Review also stated
that Ms. Myles had been diagnosed with cervical spine tension
headaches, degenerative disc disease of the cervical spine,
and cervicalgia, prior to the injury in the claim. Given the
evidence of record, the Board of Review concluded that Ms.
Myles has not met the test for reopening found in
Bostic or Harper.
review, we agree with the decision of the Board of Review.
Although Dr. Boone opined that there was sufficient force at
the time of the injury to injure Ms. Myles's cervical
spine and that her headaches could be the result of her
cervical spine, the Board of Review did not conclude that Ms.
Myles met the test for reopening of her claim because
cervical spine issues are not new facts previously
unconsidered. The Board of Review reasoned that Dr. Mukkamala
determined that Ms. Myles was fully compensated by her prior
3% permanent partial disability award for headaches and her
cervical spondylosis that Dr. Boone indicated might be
contributing to her was headaches was naturally occurring and
not causally related to her compensable injury. The Board of
Review did not err in reversing the May 11, 2018, decision of
the Office of Judges because there is no evidence of record
supporting additional impairment above the 3% permanent
partial disability award already granted in the claim.
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 so clearly wrong
based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review's
findings, reasoning and conclusions, there ...