Cabell woman says Workers' Comp employee is liable

CHARLESTON – A Cabell County woman claims a case manager for the West Virginia Workers' Compensation Commission is to blame for worsening condition following a work-related accident.

In a lawsuit filed last month in Kanawha Circuit Court, Kathy Egnor sues Shirley Armstead, a claims worker for the state Workers' Comp Commission.

On Feb. 12, 2003, Egnor injured her right ankle while working as a maid for Uptowner Inns Inc. She filed a Workers' Comp claim, which was ruled compensable on March 3, 2003. She was under the care of Dr. Jeffrey Shook with Scott Orthopedic Group in Huntington.

In addition to a right ankle and foot sprain, Shook soon diagnosed Egnor with early signs of reflex sympathetic disorder (RSD).

WebMD.com says reflex sympathetic dystrophy syndrome (RSDS), also known as complex regional pain syndrome, is a rare disorder of the sympathetic nervous system that is characterized by chronic, severe pain. The sympathetic nervous system is that part of the autonomic nervous system that regulates involuntary functions of the body such as increasing heart rate, constricting blood vessels, and increasing blood pressure. Excessive or abnormal responses of portions of the sympathetic nervous system are thought to be responsible for the pain associated with reflex sympathetic dystrophy syndrome..

The suit, filed by Huntington attorney Timothy P. Rosinsky, says Workers' Comp granted Shook's requests for physical therapy on May 12, 2003, but noted that RSD was not part of her claim. The ruling, however, did not deny treatment for RSD.

The suit also claims Workers' Comp approved Shook's requests for treatment until Dec. 9, 2003. Then, the commission issued two protestable rulings. One ruling denied his request for a pain management consultation on the ground that RSD was not a compensable diagnosis in this case. The other ruling denied Shook's request for six lumbar sympathetic blocks on same ground.

Armstead, the suit says, authored both rulings.

Egnor continued to receive approval from Workers' Comp for her medication, but she was denied a series of "lumbar sympathetic blocks aimed at aggressively treating her RSD condition."

According to painandwellness.com, a sympathetic block involves injecting local anesthetic around the sympathetic nerves in the neck or low back. For back, leg, or foot pain, the sympathetic nerves in the low back are targeted. This is a lumbar sympathetic block.

The suit says Egnor had a consultation with Dr. David Caraway, a pain specialist, in November 2003. The suit says Caraway is an expert in the treatment of RSD disorders. He requested approval for the lumbar sympathetic blocks after the consult, and forwarded that request to Workers' Comp.

In December 2003, Armstead denied that treatment, according to the suit.

"There was absolutely no medical evidence in plaintiff's workers' compensation file to support Ms. Armstead's rulings of December 9, 2003, which denied plaintiff treatment for RSD," the suit states. "Indeed, there was no review by the Office of Medical Management at the Commission, nor were there any independent medical findings to justify Ms. Armstead's decision in this regard."

The delay in approval prompted Caraway to write Armstead a letter dated April 8, 2004. He also submitted a "diagnosis update" to add RSD as a compensable diagnosis in Egnor's case.

In the letter, he said Egnor was "progressively losing function and may eventually lose all function of her foot if she is not aggressively treated."

The suit says Armstead then did not seek further medical evidence, nor did she refer the matter to the Office of Medical Management. It also claims she also made no effort to confirm or deny the diagnosis by virtue of an independent medical evaluation.

In October, Workers' Comp recognized RSD in the case and approved the treatment recommended by Caraway.

"Dr. Caraway has expressed an opinion to a reasonable degree of medical probability, by virtue of testimony in plaintiff's workers' compensation case, that the aforementioned delay in authorization of treatment ( i.e. the lumbar sympathetic nerve blocks) was a deterrent to the effective treatment of plaintiff's RSD condition, and that this delay also explains the worsening of her condition in the case," the suit states.

"Unfortunately, the RSD condition has now firmly taken root in plaintiff's body and is spreading. The Commission has authorized, and the claimant underwent, the implantation of a spinal stimulator device, which is designed to alleviate her RSD symptoms. However, at this point, plaintiff is unable to return to her job at the Uptowner Inns as a maid, and Dr. Caraway has informed plaintiff that her condition is likely to be progressive."

West Virginia Code says an employee of a state agency is immune from liability unless her "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner."

The suit states Egnor can't claim Armstead was malicious or in bad faith.

"Nevertheless, plaintiff respectfully asserts that Ms. Armstead's actions were wanton and reckless, especially after she receive Dr. Caraway's report dated April 8, 2003," the suit states.

"Ms. Armstead had an arsenal of resources available to her, and yet she used none of those resources. … Instead, she inexplicably ignored Dr. Caraway's serious warnings in this case.

"Shirley Armstead has absolutely no medical training, and she is certainly not in a position to disagree and/or disregard the opinions of a noted expert in his area. The warnings in the April 8, 2003, letter from Dr. Caraway are so serious that any reasonable person would have taken immediate action to address the issue, and yet Ms. Armstead took no such action."

As a result, Egnor says she has suffered damages in the form of a worsening in the RSD in her foot and throughout her body. She also asserts claims for past, present and future wage loss; past, present and future medical expenses; and past, present and future pain and suffering.

She seeks compensatory damages in an amount sufficient to compensate her for her losses; pre- and post-judgment interest; attorney fees and costs; other relief deemed just.

Egnor seeks a jury trial.

The case has been assigned to Circuit Judge Paul Zakaib.

Kanawha Circuit Court case number: 05-C-2762