Jason Travers v. Blackhawk Mining

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
JASON TRAVERS, February 2, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-237 (JCN: 2021002306) OF WEST VIRGINIA

BLACKHAWK MINING,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Jason Travers appeals the October 11, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Blackhawk Mining filed a timely
response. 1 Petitioner did not file a reply. The issue on appeal is whether the Board erred in
affirming the January 24, 2022, order of the claim administrator that denied adding post-
traumatic stress disorder (“PTSD”) and anxiety as compensable conditions to Mr. Travers’
claim.

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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Travers was injured while working on Blackhawk Mining’s mine move crew
on August 3, 2020, when his head was pinned between two pieces of equipment as the
mantrip in which he was riding continued to move. He was treated at Beckley Appalachian
Regional Hospital for hematomas and laceration of the scalp requiring twenty-two staples,
and a closed right rib fracture. Mr. Travers was treated by Kyle Muscari, D.O., on August
12, 2020. Dr. Muscari noted that Mr. Travers was injured at Blackhawk Mining when his
head was stuck between two pieces of equipment. Dr. Muscari diagnosed thoracic back
pain and enclosed fracture of the right rib.

By order dated August 18, 2020, the claim administrator approved Mr. Travers’
claim for the injuries of head contusion and laceration. Mr. Travers continued to see Dr.

Petitioner is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq.
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Respondent is represented by Jane Ann Pancake, Esq. and Jeffrey B. Brannon, Esq.

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Muscari in October and November of 2020 for the work injury. Dr. Muscari completed a
return-to-work slip for Mr. Travers on November 16, 2020, stating that he could return to
work on December 15, 2020. Accordingly, the claim administrator issued an order dated
November 24, 2020, suspending TTD benefits.

Mr. Travers returned to Dr. Muscari on December 1, 2020, and complained of sharp
pain in his thoracic region and in the posterior area of his right eighth rib, and stated that
he did not think he could return to work. He also reported that had been experiencing
anxiety since the work injury and denied any prior history of anxiety. Dr. Muscari assessed
thoracic back pain, closed fracture to the right rib, and anxiety, and prescribed duloxetine
for the anxiety.

Mr. Travers was referred for a psychological evaluation by Brandon Workman,
D.O., a licensed psychiatrist. On May 12, 2021, Dr. Workman saw Mr. Travers for an
initial evaluation. Dr. Workman’s notes from that visit state that Mr. Travers

was referred by his primary care doctor. He states that he
essentially is here for workers’ Comp reasons. He was hurt at
work riding on a man trip in the coal mines and his head got
pinned between a piece of equipment that was on top of man
trip and another piece of equipment. He states that the man trip
continued to move while his head with [sic] pin. He ended up
with several staples and broken ribs. He says that initially there
was a lot of flashbacks hypervigilance and increased anxiety
and irritability and negative intrusive thoughts and dreams as
well as avoidance. He states that some of that has gotten better
and on most days things are improved however there are
certain scenarios and he has a difficult time anticipating them
where he will have a panic attack because there was a scenario
that similar to the one which [sic] got hurt. He was placed on
Cymbalta about 4-5 months after the event. This seemed to
help little bit but still has hunted abated anxiety. He …. says
blood pressure remains elevated and he is more tense as lower
frustration tolerance feels more keyed up.

Dr. Workman also noted that Mr. Travers claimed he had been treated for PTSD and
anxiety since his accident in August 2020. Dr. Workman assessed PTSD and anxiety, and
prescribed Ativan for the PTSD and continued use of duloxetine for anxiety.

Mr. Travers returned to Dr. Workman on October 4, 2021, and reported that the
Ativan seemed to be helping with his anxiety, and then discussed symptoms related to a
previous diagnosis of attention deficit hyperactivity disorder (“ADHD”). Another office

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visit on December 28, 2021, focused on treatment of continued ADHD symptoms and
increasing dosage of medication for that disorder.

On January 10, 2022, Dr. Workman completed a HealthSmart Casualty Claims
Solutions Diagnosis Update form seeking to add PTSD and anxiety disorder as
compensable conditions to Mr. Travers’ claim. In the section of the form where the
physician is to indicate “clinical findings for the current diagnosis and advise how the
present condition relates to the compensable injury,” Dr. Workman stated, “[n]ervousness
and stress appeared after work-related injury.”

By order of January 24, 2022, the claim administrator denied the addition of PTSD
and anxiety as compensable conditions. Mr. Travers protested the order. The Board
concluded in its October 11, 2022, order that the request to add PTSD and anxiety was
properly denied and affirmed the claim administrator’s order. In its discussion, the Board
observed that Mr. Travers did not follow step two of the required three-step procedure
when seeking to add a psychiatric condition as a compensable injury under Hale v. West
Virginia Office of Insurance Commissioner, 228 W. Va. 781, 724 S.E.2d 752 (2012). In
missing that step, Mr. Travers’ psychiatrist, Dr. Workman, failed to provide a detailed
report consistent with the procedure described in West Virginia Code of Rules § 85-20-
12.4 (2006), which would have explained the details of the initial consultation, and the
specific facts, circumstances, and other authorities relied upon to determine the causal
relationship of the psychiatric condition and the compensable injury. The Board further
noted that the failure to provide this information and all other information required by West
Virginia Code of State Rules § 85-20-8.1 would result in the denial of the additional
psychiatric diagnosis. It is from this order that Mr. Travers now appeals.

The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), 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

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(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, ____ W. Va. ____, ____, ____ S.E. 2d
____, _____, 2022 WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

In his appeal, Mr. Travers argues that Dr. Workman’s medical record from the May
12, 2021, initial consultation constitutes the detailed report required by West Virginia Code
of Rules § 85-20-12.4, and therefore the Board’s decision was clearly wrong and should
be reversed.

West Virginia Code of State Rules § 85-20-12.4 provides that:

Services may be approved to treat psychiatric problems only if
they are a direct result of a compensable injury. As a
prerequisite to coverage, the treating physician of record must
send the injured worker for a consultation with a psychiatrist
who shall examine the injured worker to determine 1) if a
psychiatric problem exists; 2) whether the problem is directly
related to the compensable condition; and 3) if so, the specific
facts, circumstances, and other authorities relied upon to
determine the causal relationship. The psychiatrist shall
provide this information, and all other information required in
section 8.1 of this Rule in his or her report. Failure to provide
this information shall result in the denial of the additional
psychiatric diagnosis…

a. A Diagnosis Update Form WC-214 must be attached to
the treating physician’s report in order to request the
psychiatric condition be added as an approved diagnosis.

Mr. Travers argues that because Dr. Workman’s medical records assessed him with
PTSD and anxiety, he has satisfied step one. He further claims that Dr. Workman’s notes
from the May 12, 2021, consultation, which state the details of Mr. Travers’ workplace
injury, and then list his complaints of psychiatric symptoms, sufficiently demonstrate the
direct causal connection between the compensable injury and the psychiatric diagnoses as
required in step two. Next, Mr. Travers claims that Dr. Workman’s notes from that initial
consultation show sufficient detail regarding the trauma Mr. Travers suffered, including
from the accident itself, the injuries to his rib and head, and the subsequent psychiatric
response, to satisfy step three. (Mr. Travers further asserts that Dr. Workman was not
required to include the information required in section 8.1 of the Rule, despite the language
of section 12.4 to the contrary.) Finally, Mr. Travers claims that the HealthSmart Diagnosis
Update form signed by Dr. Workman satisfies the requirement for the submission of a

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Diagnosis Update Form WC-214. Consequently, Mr. Travers asserts that he successfully
met his burden to establish the compensability of the psychiatric conditions at issue, and
that we should reverse the Board’s decision and hold his claim compensable for PTSD and
anxiety.

Upon our review, we find no error in the Board’s decision to affirm the claim
administrator’s order. Mr. Travers was required to follow the procedure outlined in West
Virginia Code of State Rules § 85-20-12.4 when seeking to add a psychiatric condition as
compensable in his claim. He was referred to and evaluated by a licensed psychiatrist, Dr.
Workman, but Dr. Workman did not provide the detailed report that included all the
information outlined in sections 12.4 and 8.1, as is explicitly required under the Rule. See
Id. Dr. Workman’s bare statement on the Diagnosis Update form that “nervousness and
stress appeared after work-related injury” is not enough to satisfy the requirement. The
Rule states that failure to provide all the required information shall result in the denial of
the additional psychiatric diagnosis. Id. Therefore, because of this procedural error, Mr.
Travers is entitled to no relief.

Accordingly, we affirm the Board’s October 11, 2022, order.

Affirmed.

ISSUED: February 2, 2023

CONCURRED IN BY:

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

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