Fayette County Board of Education v. Kelly L. Adkins

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
FAYETTE COUNTY BOARD OF EDUCATION January 10, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-95 (JCN: 2019002662) OF WEST VIRGINIA

KELLY L. ADKINS,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Fayette County Board of Education appeals the August 31, 2022, order
of the West Virginia Workers’ Compensation Board of Review (“Board”). Respondent
Kelly L. Adkins filed a timely response and a supplemental appendix. 1 Petitioner did not
file a reply brief. The issue on appeal is whether the Board erred in reversing the claim
administrator’s decision and granting Ms. Adkins an 11% permanent partial disability
award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure, and a memorandum decision is appropriate
to vacate and remand the matter for further proceedings consistent with this decision.

On July 26, 2018, Ms. Adkins, a schoolteacher, was preparing her classroom for the
upcoming school year when several boxes fell on her head/back as she was attempting to
remove them from a shelf. Ms. Adkins was knocked to the ground. She sought treatment
two days later with complaints of pain, nausea, and dizziness. CT scans of Ms. Adkins’s
brain showed no abnormalities. Ms. Adkins was diagnosed with concussion without loss
of consciousness. By order dated August 17, 2018, the claim was held compensable for
concussion without loss of consciousness. Sometime later, the claim administrator added
chronic posttraumatic headache as a compensable condition.

In November of 2018, Ms. Adkins was evaluated by Jennifer L. Lultschik, M.D.
Ms. Adkins reported that she was struck by some falling milk crates that contained room

1
Petitioner is represented by Jillian L. Moore, Esq. Respondent is represented by
Stephen P. New, Esq., and Amanda J. Taylor, Esq.
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decorations. Ms. Adkins claimed she did not recall whether she lost consciousness but
stated that, since the accident, she suffered from anxiety and short-term memory/cognitive
issues. Dr. Lultschik diagnosed Ms. Adkins with post-concussion syndrome and
posttraumatic headache and referred her for neuropsychological testing.

Ms. Adkins underwent a neuropsychology assessment performed by David M.
Scarisbrick, Ph.D., in December of 2018. Ms. Adkins reported issues such as
attention/distractibility difficulties, absent-mindedness, forgetting items around the house,
decreased reading retention, difficulty forming sentences, and difficulty with multitasking.
Ms. Adkins also noted an increase in her anxiety and depression symptoms and stated she
was easily moved to tears. Dr. Scarisbrick noted that Ms. Adkins’s responses to questioning
were indicative of emotional distress, overreporting of somatic complaints, and
overreporting of memory complaints, but not to an extent to invalidate the results. Dr.
Scarisbrick opined that, for Ms. Adkins’s type of head injury, prolonged cognitive
symptoms would be unusual. Dr. Scarisbrick further opined that Ms. Adkins was suffering
from significant emotional distress and may be converting said distress into
cognitive/physical/neurologic manifestations. In sum, Dr. Scarisbrick diagnosed Ms.
Adkins with adjustment disorder with mixed anxiety and depression; major depressive
disorder, moderate; and unspecified anxiety disorder.

In October of 2019, Ms. Adkins underwent an independent medical evaluation
(“IME”) performed by Timothy Thistlewaite, M.D., a psychiatrist. Ms. Adkins had
continued problems with headaches, nausea, dizziness, cognitive issues, and short-term
memory loss. Dr. Thistlewaite found that Ms. Adkins’s memory deficits were supported
by objective medical evidence, though they appeared to be mild, and that they were related
to the compensable injury. Dr. Thistlewaite found that, per West Virginia Code of State
Rules § 85-20 Exhibit B, 2 Ms. Adkins had a Global Assessment of Functioning rating of
70, which would place her in the mild range of impairment with 3% whole person
impairment due to her complaints of poor concentration and short-term memory
impairments.

2
According to West Virginia Code of State Rules § 85-20 Exhibit B, in part,

Exhibit B shall be used to determine a claimant’s psychiatric impairment
rating using the classification consistent with the AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition, in conjunction with the
Axis V Global Assessment of Functioning Scale (GAF, DSM-IV-TR 2000,
page 34), the claimant’s treatment needs, and functional status.

However, “[d]isorders believed to have resulted from brain injury, such as cognitive
disorders, should NOT be rated using this guideline, but should be evaluated according to
relevant sections of Chapter 4 of the AMA Guides to the Evaluation of Permanent
Impairment, Fourth Edition.” Id.
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On January 2, 2020, the claim administrator granted Ms. Adkins a 3% permanent
partial disability award based on Dr. Thistlewaite’s report. In May of 2020, Joseph E.
Grady II, M.D., performed an IME of Ms. Adkins. Dr. Grady assessed “status post head
injury with reported posttraumatic concussion syndrome” and noted that neuropsychiatric
testing did reveal a mild degree of cognitive issues. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“Guides,
Fourth”), Dr. Grady determined that Ms. Adkins had a 3% whole person impairment
relating to cognitive issues and 2% whole person impairment for dizziness, for a combined
total of 5%. Following Dr. Grady’s report, the claims administrator granted Ms. Adkins an
additional 2% permanent partial disability award.

Ahmed D. Faheem, M.D., performed an IME of Ms. Adkins in July of 2020. Dr.
Faheem’s diagnostic impression was adjustment order with anxiety and depression and
post-concussion syndrome with chronic recurrent headaches and mild cognitive
impairment. Dr. Faheem rated Ms. Adkins per West Virginia Code of State Rules § 85-20
Exhibit B and the Global Assessment of Functioning Scale and opined that Ms. Adkins had
20% whole person impairment.

Also in July of 2020, Robert B. Walker, M.D., performed an IME of Ms. Adkins,
who complained of chronic headaches, short term memory problems, limited driving, and
a tendency to drop things. Dr. Walker diagnosed petitioner with post-concussion syndrome
and, using the Guides, Fourth, found 11% whole person impairment for central nervous
system deficit. Dr. Walker noted that Ms. Adkins “retains orientation, simple but not more
complex serial subtraction, reading and writing, but [has a] significant recent memory
deficit.”

In February of 2022, Ms. Adkins underwent a final IME, which was performed by
Timothy S. Allen, M.D. Dr. Allen concluded that Ms. Adkins “may have suffered a mild
[traumatic brain injury] . . . but she did not lose consciousness, had no amnesia, was able
to drive immediately after, and did not seek treatment until the next day.” Dr. Allen stated
that such an injury was unlikely to cause permanent neurological damage that would lead
to cognitive impairment. Dr. Allen opined that Ms. Adkins repeatedly put her “worst foot
forward” with testing and that her preexisting depression had developed into Somatic
Symptom Disorder. Dr. Allen opined that Ms. Adkins’s work injury “was a moderate
aggravant of her preexisting condition.” Dr. Allen rated Ms. Adkins according to West
Virginia Code of State Rules § 85-20 Exhibit B and the Global Assessment of Functioning
Scale and the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (5th ed. 2000) (“Guides, Fifth”), and assessed Ms. Adkins to have 5% whole
person impairment “from psychiatrically mediated cognitive complaints and physical
symptoms (dizziness, headaches, etc.).”

By order dated August 31, 2022, the Board reversed the claims administrator’s order
and granted Ms. Adkins an 11% permanent partial disability award in accordance with Dr.

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Walker’s report. The Board disregarded the reports of Dr. Thistlewaite and Dr. Faheem,
finding that they did not use the proper guidelines to rate Ms. Adkins’s impairment. The
Board also disregarded the report of Dr. Allen, finding that he did not address the
compensable conditions of concussion without loss of consciousness and chronic post-
traumatic headache. As such, the Board found that the reports of Dr. Grady and Dr. Walker
were the only reliable and valid ratings and further found that “[t]he preponderance of the
evidence supports a finding that [Ms. Adkins] has 11% impairment for the compensable
injury.” Petitioner now appeals. 3

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

On appeal, the employer argues that the record is clear that the Board wrongfully
weighed the evidence below and interpreted the evidence liberally in Ms. Adkins’ favor,
which it claims is statutorily improper. According to the employer, Ms. Adkins suffered
only a mild impairment resulting from her concussion and was able to return to work after
two to four weeks and has remained employed since that time. Further, the impairment
ratings of three physicians indicated a mild impairment. Indeed, Dr. Thistlewaite, Dr.
Grady, and Dr. Allen all reached the conclusion that Ms. Adkins suffered 5% impairment
for her compensable injury. The employer argues that Dr. Allen’s impairment rating should
not have been disregarded simply because he did not mention the compensable injury by
name. Dr. Allen clearly noted that petitioner had a mild traumatic brain injury, “which is
essentially the same as a concussion.” Lastly, the employer argues that the Board erred in
accepting Dr. Walker’s impairment. Dr. Walker found that Ms. Adkins had significant
recent memory deficits, which is not supported by the evidence. Rather, Ms. Adkins’
memory deficits were mild and were fully covered by the 5% permanent partial disability

3
By order of October 5, 2022, this Court granted a stay pending appeal.
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award. The employer concludes that, as such, the Board’s decision to rely upon Dr.
Walker’s report was in direct contravention of the preponderance of the evidence standard
and amounts to applying the liberality rule, which was abolished in 2003.

At the outset, we note that, contrary to the employer’s claims, the Board did not err
in disregarding the impairment ratings of Dr. Thistlewaite, Dr. Faheem, and Dr. Allen.
Given the nature of Ms. Adkins’s injury and her complaints, testing was done to determine
whether there was a psychiatric component of her injury. However, no psychiatric
conditions were held compensable. In Hale v. West Virginia Office of the Insurance
Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012), the Supreme Court of Appeals of
West Virginia set forth a three-step process for adding psychiatric conditions to a claim:

(1) the claimant’s treating physician refers the claimant to a psychiatrist for
an initial consultation; (2) following the initial psychiatric consultation, the
psychiatrist is to make a detailed report consistent with the procedure
described in W.Va. C.S.R. § 85-20-12.4 [2005]; and (3) the claims
administrator, aided by the psychiatrist’s report, is to determine whether the
psychiatric condition should be added as a compensable injury in the claim.

Id., 228 W. Va. at 782, 724 S.E.2d at 753, syl. pt. 2, in part. In the case at bar, Ms. Adkins
was referred for psychiatric testing and obtained a report as a result, but no psychiatric
conditions were held compensable by the claims administrator. As noted in West Virginia
Code of State Rules § 85-20 Exhibit B, psychiatric impairment ratings are to be conducted
using Guides, Fifth, which is what was used by Dr. Thistlewaite, Dr. Faheem, and Dr.
Allen. However, cognitive disorders resulting from brain injuries are to be rated using
Guides, Fourth. Here, no psychiatric conditions were held compensable, leaving only
concussion without loss of consciousness and chronic headaches as compensable
conditions. As such, any impairment ratings made using Guides, Fourth, were proper, and
the Board did not err in disregarding any impairment ratings based on other guidelines.

We find, however, that the Board failed to make adequate findings of fact and
conclusions of law when weighing the evidence between the impairment ratings of Dr.
Grady and Dr. Walker. After disregarding three different impairment ratings, the Board
was left with only the ratings of Dr. Grady and Dr. Walker to consider. The Board’s sole
finding when choosing between the two impairment ratings was that “[t]he preponderance
of the evidence supports a finding that [Ms. Adkins] has 11% impairment for the
compensable injury.” This limited finding is insufficient to support appellate review, as the
Board failed to make any findings regarding what evidence supported a finding in favor of
Dr. Walker’s recommendation over that of Dr. Grady’s, and we are unable to properly
review the Board’s decision. As the Supreme Court of Appeals of West Virginia has
pointed out, in order to properly review an order, it “must be sufficient to indicate the
factual and legal basis for the . . . ultimate conclusion so as to facilitate a meaningful review
of the issues presented.” Collisi v. Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-

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55 (2013) (quoting Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904
(1996)). Moreover, “[w]here the lower tribunals fail to meet this standard—i.e. making
only general, conclusory or inexact findings—we must vacate the judgment and remand
the case for further findings and development.” Collisi, 231 W. Va. at 364, 745 S.E.2d at
255 (quoting Province, 196 W. Va. at 483, 473 S.E.2d at 904). Due to the lack of findings,
we find it necessary to vacate and remand the Board’s August 31, 2022, order for the
limited purpose of entry of an order that contains sufficient findings of fact and conclusions
of law for appellate review.

Accordingly, we vacate and remand. The Clerk is hereby directed to issue the
mandate contemporaneously with this memorandum decision.

Vacated and remanded.

ISSUED: January 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating.

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