Justices: Diagnosis not compensable under workers’ comp claim

By Kyla Asbury | Nov 20, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a woman’s cervical herniated discs and two forms of therapy are not compensable under her workers’ compensation claim.

Danyel K. Habig was working for Eagle Natrium when she was struck in the side of the head by a heavy piece of copper, according to the Nov. 7 memorandum decision.

“We are asked to decide whether cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 should be added to Ms. Habig’s claim,” the decision states. “We are also asked to determine if dry needling and trigger point therapy for the neck should be authorized. After a thorough review of the evidence of record, we find that the requested diagnoses are not the result of the compensable injury and should not be added to the claim.”

The decision states that the requested treatment for the non-compensable conditions cannot be authorized.

“We also find, after consideration of the parties’ briefs and evidentiary record, that the decisional process would not be significantly benefitted by oral argument,” the decision states. “We find no substantial question of law or prejudicial error. Therefore, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.”

Treatment notes from Barnesville Hospital emergency room the day after Habig’s injury indicate she was treated at the work place medical area following the injury but was now experiencing headache, nausea and a knot on her head. A CT scan was normal.

Habig was diagnosed with traumatic brain injury, but there was no neck pain and she was advised to rest.

The report of injury indicates Habig sustained a head/brain injury and there was no mention of cervical spine injuries. A physician summary from Ohio Valley Medical Center noted that she was hit in the head nine days prior and was still feeling dizzy, nauseous and had a headache.

The impression was post-concussive headache. Dr. Michael Kovalick treated Habig and indicated she was still having persistent headaches. 

In October 2014, Kovalick stated in a progress note that Habig was improving and that her diagnoses remained closed head injury with concussion and traumatic brain injury.

In January 2015, Dr. ChuanFang Jin performed an independent medical evaluation in which she noted that Habig had no neck tenderness on examination. Kovalick reviewed his treatment notes and found that Habig really has no mention of neck pain at the initial visit and first follow up.

Habig sought further treatment for her concussion symptoms and Dr. Maria Twichell evaluated her and diagnosed concussion and neck pain with cervicogenic headaches.

Dry needling and trigger point therapy to the neck was recommended. Kovalick recommended Habig continue with work conditioning and get started on therapy for dry needling two to three times a week for three weeks.

The claims administrator denied authorization for dry needling and trigger point therapy for the neck.

In October 2015, Dr. David Lobas determined that Habig had reached maximum medical improvement for her compensable head trauma and possible cerebral concussion. She could return to full duty work over the following month.

Kovalick released Habig to return to part-time work in mid-October. He noted that she was doing physical therapy for her neck under her private insurance.

Jin issued a supplemental report regarding a request to calculate permanent impairment since Habig reached maximum medical improvement. She assessed 3 percent impairment and noted that the neck had not been accepted as a compensable condition in the claim and it therefore received 0 percent impairment.

The Office of Judges affirmed the claims administrator’s orders denying the addition of cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 to the claim, as well as denying treatment of such. The OOJ concluded that Habig did not report cervical pain until eight months after the compensable injury and it was noted in multiple medical records that she had no cervical pain on examination.

The OOJ found that cervical herniated discs at C5-6 and C6-7 and stenosis at C5-6 and C6-7 should not be added to the claim, nor should the requested treatment for such be authorized. The Board of Review adopted the findings of fact and conclusions of law of the OOJ and affirmed its order on Jan. 20.

Habig argues that there is no evidence that she had cervical symptoms prior to the compensable injury and that physical therapy notes show that she suffered from neck tenderness two weeks after the compensable injury occurred.

Eagle Natrium argued that Habig failed to report neck pain until eight months after the compensable injury occurred.

“After review of the evidence of record and consideration of the parties’ arguments, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states. “Ms. Habig was injured in September of 2014 and did not report cervical pain until June of 2015.”

The Supreme Court found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. It affirmed the Board of Review’s decision.

W.Va. Supreme Court of Appeals case number: 17-0151

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