Jeffrey Brewer v. ACRN Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
JEFFREY BREWER, November 1, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-250 (JCN: 2022020832) OF WEST VIRGINIA

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Jeffrey Brewer appeals the May 10, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent ACNR Resources, Inc. (“ACNR”)
timely filed a response. 1 Petitioner did not file a reply. The issue on appeal is whether the
Board erred in affirming the claim administrator’s order, which denied the addition of
contusion of the abdominal wall, left hip pain, right knee pain, and left flank pain as
compensable conditions in the claim, and denied authorization for an upper endoscopy and
colonoscopy.

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 Board’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 for reversal in a memorandum decision. For the
reasons set forth below, the Board’s decision is affirmed, in part, and reversed, in part.

On April 14, 2022, Mr. Brewer sustained a work-related injury when a rock fell
from the ceiling of the mine where he was working and struck him on the back. Mr. Brewer
presented to the emergency room (“ER”) on April 16, 2022, complaining of pain in his
back, flank, and ribs. Mr. Brewer denied any nausea, vomiting, or diarrhea, and a CT scan
of Mr. Brewer’s abdomen revealed no evidence of acute traumatic injury but did indicate
status post-cholecystectomy and stable splenomegaly. Mr. Brewer and the ER staff
completed an Employees’ and Physicians’ Report of Occupational Injury form, and the
physicians’ portion of the form included diagnoses of a contusion and hematoma of the
back. By order dated May 4, 2022, the claim administrator held the claim compensable for
“contusion of unspecified back wall of thorax.”

Mr. Brewer is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
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Esq. ACNR is represented by Aimee M. Stern, Esq.
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About three weeks after the injury, on May 7, 2022, Mr. Brewer underwent a CT
scan of his abdomen due to his complaints of abdominal pain, nausea, vomiting, and history
of trauma. The CT scan revealed no acute process. Subsequently, on May 12, 2022, Mr.
Brewer sought treatment from Alan Hess, M.D., and complained of abdominal pain,
diarrhea, and nausea following his work-related injury. Dr. Hess noted that the two CT
scans of Mr. Brewer’s abdomen revealed no abnormalities other than chronic
splenomegaly. Dr. Hess stated, “I do not know really what is going on I really cannot
explain the continued nausea and generalized abdominal discomfort and particularly I
cannot explain the diarrhea either.” Dr. Hess diagnosed Mr. Brewer with abdominal pain
of unclear etiology, nausea, vomiting, and a contusion of the back.

Mr. Brewer sought treatment from Mark Johnson, M.D., on May 16, 2022, and
reported ongoing, but resolving abdominal pain. Mr. Brewer stated that he continued to
have nausea, vomiting, and diarrhea following his work-related injury. Dr. Johnson
expressed concern that Mr. Brewer could have developed gastritis “as a consequence of his
injury, change in habits, and chronic Voltaren use.” Dr. Johnson requested authorization
for an upper endoscopy and colonoscopy. By order dated June 2, 2022, the claim
administrator denied the request, finding that it was not related to the compensable
diagnosis in the claim. Mr. Brewer protested the order. On June 3, 2022, Mr. Brewer
underwent an endoscopy and colonoscopy performed by Dr. Johnson and paid for by his
personal insurance. The post-operative diagnosis was mild gastritis and diverticulosis.

Mr. Brewer returned to see Dr. Hess on June 29, 2022, for an annual preventive
wellness exam. Mr. Brewer reported that his symptoms were improving and denied any
nausea or vomiting. Mr. Brewer saw Dr. Hess again on October 31, 2022. Dr. Hess
explained that Mr. Brewer sustained a work-related injury in which he was struck by a rock
and trapped against a machine, hitting his left flank and left abdominal wall. Dr. Hess added
that Mr. Brewer developed swelling and a large hematoma in the area and noted that Mr.
Brewer continued to have pain in the left upper abdominal wall. Dr. Hess opined, “I am
not real sure of the cause of this chronically but suspect it is related to the injury.” Dr. Hess
diagnosed contusion of the abdominal wall, left hip pain, right knee pain, and right flank
pain, and he completed a Diagnosis Update form requesting to add these conditions to the
claim. By order dated November 8, 2022, the claim administrator denied Dr. Hess’ request
to add contusion of the abdominal wall, left hip pain, right knee pain, and left flank pain as
compensable conditions in the claim. Mr. Brewer protested the order.

In the ensuing litigation, several medical records were submitted into evidence,
which detailed Mr. Brewer’s chronic, preexisting gastrointestinal issues. For example, in
January of 2016, Mr. Brewer’s medical records indicated a secondary diagnosis of gastro-
esophageal reflux disease (“GERD”). Records from August of 2019 indicated that Mr.
Brewer sought treatment for vomiting, nausea, and diarrhea, and his secondary diagnoses
included diarrhea, fatigue, GERD, long term use of oral hypoglycemic drugs, and other
long-term drug therapy. Records from October of 2019 indicated that Mr. Brewer

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underwent an esophagogastroduodenoscopy (“EGD”) and a colonoscopy, and the post-
operative diagnosis was gastritis.

On November 10, 2022, Mr. Brewer testified via deposition. Mr. Brewer denied
having stomach issues or diarrhea prior to his work-related injury. He testified that he
continued to have issues such as muscle spasms and diarrhea, especially with heavy lifting.
He stated that he developed bruising on his left side and around his stomach following the
incident and that his abdomen was tender. Mr. Brewer stated that he currently has residual
left hip pain and right knee pain due to changing the way he walked following the injury
and tenderness in his stomach.

Subsequently, Prasadarao Mukkamala, M.D., authored a record review report on
January 3, 2023. Dr. Mukkamala opined that there was no evidence of injury to the
abdominal wall and, as such, a contusion to the abdominal wall did not result from the
work-related injury. Dr. Mukkamala also opined that left hip pain, right knee pain, and left
flank pain were symptom complexes, not specific conditions, and, further, there was no
evidence of injury to those body parts at the time of the compensable injury. Dr.
Mukkamala recommended against authorizing the endoscopy and colonoscopy, noting
they were not required because of the compensable injury. Dr. Mukkamala stated that there
was no evidence that Mr. Brewer sustained any injury to his abdomen and, therefore, there
was no indication for an endoscopy or colonoscopy as it relates to the compensable injury.

By order dated May 10, 2023, the Board affirmed the claim administrator’s
November 8, 2022, order, which denied the addition of contusion of the abdominal wall,
left hip pain, right knee pain, and left flank pain as compensable conditions in the claim,
and its June 2, 2022, order, which denied authorization for an upper endoscopy and
colonoscopy. The Board found that left hip pain, right knee pain, and left flank pain were
all properly denied as compensable conditions as they were symptoms and not medical
diagnoses. See Whitt v. US Trinity Energy Servs., LLC, No. 20-0732, 2022 WL 577587, at
* 3 (W. Va. Feb. 25, 2022) (memorandum decision) (“This Court has consistently held that
pain is a symptom, not a diagnosis.”).

The Board further found that the medical evidence did not support a finding that a
contusion of the abdominal wall was causally related to the compensable injury. The Board
noted that a CT scan performed following the compensable injury revealed no acute
traumatic injury to the abdominal wall, and the ER physician did not diagnose a contusion
to the abdominal wall. The Board noted that Mr. Brewer was not diagnosed with a
contusion of the abdominal wall until six months after the date of injury, which also
indicated that it was not related to the compensable injury.

Lastly, the Board found that the evidence did not support a finding that the
endoscopy and colonoscopy were medically necessary treatments for a contusion of the
back wall of the thorax, the only compensable condition in the claim. The Board noted that

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Dr. Mukkamala opined that the request for these procedures was not causally related to the
compensable injury. The Board further noted that the record does not contain a
compensable gastrointestinal condition. Moreover, Dr. Johnson requested the endoscopy
and colonoscopy due to Mr. Brewer’s complaints of nausea, vomiting, and diarrhea, which
were symptoms, not diagnoses. These procedures were performed and revealed no
evidence of traumatic injury but, rather, showed gastritis and diverticulosis. The Board
found that the medical evidence did not contain any evidence linking diverticulosis to the
compensable injury and the evidence indicated that a diagnosis of gastritis preexisted the
claim. Given the foregoing, the Board concluded that the claim administrator did not err in
denying the addition of contusion of the abdominal wall, left hip pain, right knee pain, and
left flank pain as compensable conditions in the claim, and denying authorization for an
upper endoscopy and colonoscopy. Mr. Brewer now appeals.

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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Mr. Brewer raises two assignments of error. Mr. Brewer first argues that
the Board erred in affirming the claim administrator’s order which denied the addition of
contusion of the abdominal wall, left hip pain, right knee pain, and left flank pain as
compensable conditions in the claim. Mr. Brewer states that he developed these symptoms
and conditions following the compensable injury, and that Dr. Hess completed the
Diagnosis Update form and indicated that they were a result of the compensable injury.
Mr. Brewer contends that the causal connection between his injuries and his employment
is evident because “the pain and limitations he currently experiences are located in the
exact same areas that he suffered a significant contusion and muscular damage to at the

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time of his work injury.” Mr. Brewer acknowledges that pain is a symptom, not a diagnosis,
but claims that they should be added as an “exception to the rule against symptoms” since
they most accurately describe his condition. Regarding the contusion to the abdominal
wall, Mr. Brewer argues that photographs submitted into evidence show bruising and
support the diagnosis of a contusion to the abdominal wall.

Upon review, we conclude that the Board did not err in denying the addition of left
hip pain, right knee pain, and left flank pain as compensable conditions in the claim as they
are symptoms, not diagnoses. See, e.g., Harpold v. City of Charleston, No. 18-0730, 2019
WL 1850196, at *3 (W. Va. Apr. 25, 2019) (memorandum decision) (holding that left knee
pain is a symptom, not a diagnosis, and therefore cannot be added to a claim); Owens v.
Bundy Auger Mining, Inc., No. 20-0664, 2022 WL 10218876, at *3 (W. Va. Oct. 18, 2022)
(memorandum decision) (holding that thoracic pain and muscle spasms are symptoms, not
diagnoses, and therefore cannot be added to the claim); Whitt v. U.S. Trinity Energy Serv.,
LLC, No. 20-0732, 2022 WL 577587, at *3 (W. Va. Feb. 25, 2022) (memorandum
decision) (holding that because no physician has made a specific diagnosis in regard to the
shoulders other than pain, they cannot be added to the claim).

However, we find that the Board committed clear error in affirming the claim
administrator’s order insofar as it denied the addition of a contusion to the abdominal wall
to the claim based upon the photographs submitted into evidence, which corroborate Dr.
Hess’ October 31, 2022, report in which he diagnosed a contusion to the abdominal wall.
We first note that the Board’s findings of fact regarding the photographs submitted into
evidence are entirely inadequate. Other than stating that the photographs were reviewed,
the Board completely fails to provide any description of the photographs or its impression
of the contents of the photographs. These photographs were important pieces of evidence
given that they showed the contusions/bruising Mr. Brewer sustained as a result of his
compensable injury and they warranted more detailed findings than a solitary sentence
stating they had been reviewed. Accordingly, we find that the Board’s findings of fact are
incomplete as they did not include any summarization of the photographs, leading us to
conclude that the Board erroneously failed to consider the photographs in rendering its
decision on compensability in this claim.

Upon reviewing the photographs, we conclude that Mr. Brewer sustained a
contusion to his abdominal wall in the course of and as a result of his employment. The
photographs show a contusion to the back, which was held compensable. However, the
photographs further reveal that the contusion stretches around Mr. Brewer’s side and to the
front of his abdomen. While the Board is correct that the ER staff had not diagnosed a
contusion of the abdominal wall, a CT scan showed no acute injury to the abdomen, and
Dr. Hess did not diagnose the contusion for approximately six months following the injury,
the photographs reveal the true extent of Mr. Brewer’s contusions, which clearly extend to
his abdomen.

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The standard for the addition of a new condition to a claim is the same as for
compensability. For an injury to be compensable it must be a personal injury that was
received in the course of employment, and it must have resulted from that employment.
Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). When
considering the photographs in conjunction with Dr. Hess’ October 12, 2022, report, and
the fact that the claim has been held compensable for a contusion of the back wall of the
thorax, which is seen in the same photographs as the contusion to the abdomen, we
conclude that Mr. Brewer sustained a contusion to the abdominal wall in the course of and
as a result of his employment. Accordingly, we find that the Board clearly erred in
affirming the claim administrator’s order and denying the addition of a contusion to the
abdominal wall to the claim.

Turning to Mr. Brewer’s second assignment of error, he argues that the Board erred
in affirming the claim administrator’s order which denied authorization for an endoscopy
and colonoscopy. Mr. Brewer contends that he immediately developed nausea, vomiting,
and diarrhea following his work-related incident and was appropriately referred to Dr.
Johnson after his treating physician could not determine the etiology of his symptoms. As
noted by Mr. Brewer, Dr. Johnson opined that Mr. Brewer may have developed gastritis
“as a consequence of his injury, change in habits, and chronic Voltaren use.” Mr. Brewer
argues that Dr. Johnson correctly recommended an endoscopy and colonoscopy to assess
whether an injury had occurred to Mr. Brewer’s internal organs that a CT scan had not
identified, and that the Board erred in relying on Dr. Mukkamala’s opinion as opposed to
the authorized treatment providers. Mr. Brewer avers that the requested procedures were
clearly reasonable and medically necessary and should have been authorized. While Mr.
Brewer admits that he has a history of GERD and gastritis, he argues that the last time he
sought treatment for either was in 2019 and that he did not experience symptoms again
until after his compensable injury. We disagree.

We find that Mr. Brewer failed to demonstrate that the Board’s findings and
conclusions were clearly wrong with respect to the issue of the treatment he requested. As
the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and
the ‘arbitrary and capricious’ standards of review are deferential ones which presume an
agency’s actions are valid as long as the decision is supported by substantial evidence or
by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With
this high standard of review in mind, we are unable to conclude that the Board erred in
denying authorization for an endoscopy and colonoscopy.

West Virginia Code § 23-4-3(a)(1) (2005) provides that the claim administrator
must provide medically related and reasonably required sums for healthcare services,
rehabilitation services, durable medical and other goods, and other supplies. Here, a
contusion to the back wall of the thorax and, as noted above, a contusion of the abdominal
wall are compensable conditions in the claim. The endoscopy and colonoscopy were
requested by Dr. Johnson based upon Mr. Brewer’s nausea, vomiting, and diarrhea

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symptoms. However, there are no gastrointestinal conditions that are compensable in the
claim, and there is no evidence that any treatment provider has requested that a
gastrointestinal condition be added to the claim. Further, there is no evidence showing a
causal connection between Mr. Brewer’s gastrointestinal symptoms and the compensable
injury other than Dr. Johnson’s brief, unsupported statement that the gastritis could be a
“consequence of his injury, change in habits, and chronic Voltaren use.” Dr. Johnson
provided no explanation for his statement, nor did he demonstrate a causal link between
the symptoms and the compensable injury. Moreover, Mr. Brewer has a significant
preexisting history of gastrointestinal conditions, including gastritis and GERD. Given the
foregoing, we are unable to conclude that the Board erred in affirming the denial of
authorization for an endoscopy and colonoscopy.

Accordingly, we affirm the Board’s May 10, 2023, order insofar as it denied
authorization for an endoscopy and colonoscopy and denied the addition of pain as a
compensable condition in the claim. However, we reverse the Board’s May 10, 2023, order
insofar as it denied the addition of a contusion to the abdominal wall to the claim and find
that diagnosis to be compensable.

Affirmed, in part, and Reversed, in part.

ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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