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Huntington Alloys Corp. v. Sturgeon

Supreme Court of Appeals of West Virginia

November 15, 2019

HUNTINGTON ALLOYS CORPORATION, Employer Below, Petitioner
v.
ROGER STURGEON, Claimant Below, Respondent

          (BOR Appeal No. 2052795) (Claim No. 2011007994)

          MEMORANDUM DECISION

         Petitioner Huntington Alloys Corporation, by Counsel Steven K. Wellman, appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). Roger Sturgeon, by Counsel Edwin H. Pancake, filed a timely response.

         The issues on appeal are medical benefits and additional compensable conditions. The claims administrator held the claim compensable for open wound of the forehead on September 15, 2016. In two separate decisions dated February 1, 2017, the claims administrator denied a request to add closed head injury to the claim and denied authorization for an evaluation by a neuropsychologist. The Office of Judges affirmed the September 15, 2016, decision in its April 5, 2018, Order. In that Order, the Office of Judges also reversed the February 1, 2017, claims administrator's decisions, added closed head injury to the claim, and authorized a neuropsychological evaluation. The Order was affirmed by the Board of Review on October 22, 2018.

         The 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 Procedure.

         Mr. Sturgeon, an electrician, was injured in the course of his employment on August 19, 2010, when he fell approximately twenty feet into a pit. Treatment notes from Cabell Huntington Hospital that day indicate Mr. Sturgeon was treated for a forehead laceration and a fractured radius/ulna. He reported no loss of consciousness. A head CT scan showed degenerative disc disease in the cervical spine. The Employees' and Physicians' Report of Injury was completed on August 19, 2010, and indicated Mr. Sturgeon injured his head and right wrist when he fell into a pit. The physician's section listed the injury as a fractured right wrist. The employer's incident investigation report, completed that same day, stated that Mr. Sturgeon fell thirteen feet, hit a sled, bounced, and then struck a coworker, Mr. Jones, in the upper back. A third coworker was also injured while trying to break Mr. Sturgeon's and Mr. Jones's fall. Mr. Sturgeon fractured his right arm, required stitches in the right arm, had a possible rib fracture, and had possible right shoulder damage. On August 31, 2010, the claim was held compensable for closed fracture of the right carpal bone. Right shoulder sprain was added to the claim on September 28, 2010.

         An independent medical evaluation was performed by Marsha Bailey, M.D., on March 17, 2011, and indicated Mr. Sturgeon reported short term memory loss. Dr. Bailey opined that though he reported that he hit his head on the day of his injury, his memory problems were not related to the compensable injury. She noted that Mr. Sturgeon did not lose consciousness and that a CT scan taken the day of the injury was normal. She further noted that head injuries tend to improve with time. Dr. Bailey stated that Mr. Sturgeon's wife reported that their children and Mr. Sturgeon's physical therapists have commented on his memory loss. Dr. Bailey recommended a neurological consultation.

         Mr. Sturgeon treated with Alan Koester, M.D., from April to August of 2011. The treatment notes indicate Mr. Sturgeon reported short term memory loss. It was first thought to be the result of the pain medication he was given for his injuries. When it persisted, neurological treatment was recommended. A deposition was taken of Jeffrey Myles, a member of the employer's emergency response team, on March 11, 2014. Mr. Myles stated that he arrived at the scene shortly after Mr. Sturgeon fell. Mr. Sturgeon was conscious at that time but was not coherent. Mr. Myles stated that he was informed Mr. Sturgeon fell head first, but his fall was broken by a coworker. Mr. Myles testified that when he first saw Mr. Sturgeon, he was visibly shaking and in pain.

         In a June 3, 2015, independent medical evaluation, Bruce Guberman, M.D., noted that Mr. Sturgeon had a scar on the left side of his forehead that resulted from the compensable injury. Mr. Sturgeon reported that prior to the injury, he had occasional headaches. After the injury, his headaches were much more frequent and painful. He now experienced headaches three or four times a week. Mr. Sturgeon also reported short term memory loss and that he had difficulty driving due to the memory loss. Dr. Guberman diagnosed post-traumatic headaches and post-traumatic cognitive dysfunction due to a closed head injury.

         Bal Bansal, M.D., a neurologist, treated Mr. Sturgeon for short term memory loss on June 8, 2016. Mr. Sturgeon's wife reported that her husband's short term memory loss was so severe that she feared leaving him home alone. She stated that Mr. Sturgeon kept notes all the time to aid his memory but still got very confused. Mr. Sturgeon reported difficulty processing information, rapid mood swings, and an inability to control his anger. He was easily frustrated, and his medication was not helping his symptoms. Dr. Bansal performed a cognitive assessment and concluded that Mr. Sturgeon had a traumatic brain injury which causes problems with cognition. He recommended ruling out bipolar disorder and requested authorization of an MRI, EEG, nerve conduction studies, and medication adjustment. The claims administrator held the claim compensable for open wound of the forehead on September 15, 2016.

         In an October 18, 2016, independent medical evaluation, Dr. Guberman noted that Mr. Sturgeon reported daily headaches since the compensable injury occurred as well as short term memory loss. Dr. Guberman diagnosed post-traumatic headaches and post-traumatic cognitive dysfunction. He assessed 7% mental status impairment.

         Syam Stoll, M.D., performed an independent medical evaluation on November 15, 2016, in which he noted that Mr. Sturgeon's wife and children noticed his memory problems. Mr. Sturgeon reported daily headaches that were affected by light. Dr. Stoll opined that Mr. Sturgeon did not suffer a closed head injury when he fell. The evaluation at the hospital immediately following the injury showed no indication of a head injury. Further, Mr. Sturgeon did not report memory issues until a year after the compensable injury occurred. Dr. Stoll found that the medical evidence failed to show a causal relationship between Mr. Sturgeon's memory issues and the compensable injury. Dr. Stoll opined that if Mr. Sturgeon has any cognitive impairment, it is mild and the result of his diabetes, which had been uncontrolled for fourteen years.

         On January 25, 2017, a neuropsychological evaluation was performed by Jeffrey Harlow, Ph.D., a psychologist. Dr. Harlow noted that Mr. Sturgeon reported difficulty with short term memory, fatigue, headaches, difficulty concentrating, flashbacks, depression, and anxiety. Dr. Harlow performed psychological evaluations, which produced valid results. He found that Mr. Sturgeon suffered from a chronic amnestic disorder due to a head injury, post-traumatic stress disorder, chronic major depressive disorder, anxiety disorder, and borderline intellectual functioning. Dr. Harlow opined that the anxiety and depressive disorders preexisted the compensable injury. He further opined that the amnestic disorder and post-traumatic stress disorder were caused by the compensable injury.

         The claims administrator denied a request to add closed head injury to the claim on February 1, 2017. In a separate order that day, the claims administrator also denied authorization of an evaluation by a neuropsychologist. Mr. Sturgeon was seen by Anthony McEldowney, M.D., on May 8, 2017. The treatment note indicates he reported memory loss, daily headaches, and balance issues. Dr. McEldowney diagnosed closed head injury with memory loss and deterioration of cognitive functioning.

         Dr. Harlow testified in a June 23, 2017, deposition that the medical documentation indicates Mr. Sturgeon likely did not lose consciousness when he fell. However, traumatic brain injuries do not require a loss of consciousness to occur. Dr. Harlow noted that both Drs. Guberman and McEldowney diagnosed closed head injury with residual memory loss and deterioration of cognitive functioning. Dr. ...


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