John P. Blankenship v. Schneider Construction Co.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS August 13, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
JOHN P. BLANKENSHIP, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0444 (BOR Appeal No. 2047862)
(Claim No. 2006006269)

SCHNEIDER CONSTRUCTION COMPANY,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner John P. Blankenship, by Edwin H. Pancake, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Schneider Construction
Company, by Marion E. Ray, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated April 3, 2013, in which
the Board affirmed an October 26, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 7, 2012, decision
denying Mr. Blankenship’s request for additional psychological treatment every two weeks for
six months. The Court has carefully reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for consideration.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

Mr. Blankenship worked for Schneider Construction Company as a cement mason. On
August 11, 2005, Mr. Blankenship fell down a flight of stairs, which caused severe injuries to his
head, neck, and upper back. Mr. Blankenship also developed several psychological conditions as
a result of the compensable injury, including affective disorder due to his brain injury and a
cognitive disorder. Mr. Blankenship came under the care of a psychologist, C. David Blair,
M.D., and was authorized to receive several psychotherapy counselling sessions. Following a
course of treatment, Ralph S. Smith Jr., M.D., performed an independent medical evaluation on
Mr. Blankenship and found that he had reached his maximum degree of medical improvement
with respect to his psychological conditions. Dr. Smith noted that Mr. Blankenship’s remote
memories, concentration, and attention were all adequate. Dr. Smith also issued a second report,
finding that Mr. Blankenship’s current psychotherapy treatment should not be discontinued.
However, Dr. Smith recommended that no further psychiatric treatment be authorized because
Mr. Blankenship’s condition had plateaued. Dr. Blair then requested authorization for one
psychotherapy session every two weeks for a six month period. Dr. Blair’s request was submitted
to Randall Short, D.O., who recommended denying the requested authorization because Mr.
Blankenship had already received a significant number of psychotherapy sessions and his
condition had stabilized. Mr. Blankenship then testified by deposition that the prior
psychotherapy sessions had helped him a great deal. Mr. Blankenship also stated that his
depression had gotten worse since the therapy sessions had stopped. Dr. Blair also testified by
deposition that the requested psychotherapy sessions were directly related to Mr. Blankenship’s
ongoing anxiety, depression, and cognitive disorder. On June 7, 2012, the claims administrator
denied Dr. Blair’s request for additional psychotherapy treatment. On October 26, 2012, the
Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed the
Order of the Office of Judges on April 3, 2013, leading Mr. Blankenship to appeal.

The Office of Judges concluded that the evidence did not establish the medical necessity
and reasonableness of the requested additional psychotherapy sessions. The Office of Judges
based this determination on the evaluation of Dr. Smith. The Office of Judges found that Mr.
Blankenship had reached his maximum degree of medical improvement with respect to his
psychological conditions. The Office of Judges considered the opinion of Dr. Blair, but it found
that Dr. Smith’s opinion was more persuasive. The Office of Judges also considered Mr.
Blankenship’s deposition testimony, but it found that his opinion concerning Mr. Blankenship’s
deteriorating condition was not supported by any medical documentation. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Blankenship has not demonstrated that the requested psychotherapy sessions every
two weeks for a period of six months is medically related and reasonably required to treat his
compensable psychological conditions. The evaluation of Dr. Smith demonstrates that Mr.
Blankenship had reached his maximum degree of medical improvement with respect to his
psychological conditions and is not likely to improve with additional treatment. Dr. Blair’s
treatment notes indicate that Mr. Blankenship is still experiencing anxiety and depression, which
Dr. Blair attributes to the compensable injury. Dr. Blair, however, does not sufficiently
demonstrate that the requested psychotherapy sessions will improve or prevent deterioration in
Mr. Blankenship’s psychological conditions.

For the foregoing reasons, we find 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. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: August 13, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman