STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS February 3, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DEBORA L. WHITE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 14-0304 (BOR Appeal No. 2048780)
(Claim No. 970061234)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
WEIRTON MEDICAL CENTER, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Debora L. White, by M. Jane Glauser, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Jon Snyder, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated February 28, 2014, in
which the Board affirmed an August 20, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 31, 2013,
decision denying Ms. White’s request for a 5% psychiatric permanent partial disability award.
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.
1
On May 6, 1997, Ms. White sustained multiple injuries when a patient she was assisting
fell on top of her. The claim was initially held compensable for a sprain of the hip/thigh, and the
claim was later held compensable for various injuries to Ms. White’s left ankle. On January 25,
2013, Ms. White submitted a request for authorization of a 5% psychiatric permanent partial
disability award to the claims administrator. The basis of the request was a February 3, 2003,
psychiatric independent medical evaluation performed by Ryan Finkenbine, M.D. Dr.
Finkenbine diagnosed Ms. White with recurrent major depressive disorder that is in full
remission. He opined that the May 6, 1997, injury acted as an aggravating factor with respect to
her disorder, and opined that she sustained 5% psychiatric whole person impairment as a result
of the work-related injury. On January 31, 2013, the claims administrator denied Ms. White’s
request for a 5% psychiatric permanent partial disability award based on a finding that there has
not been a compensable diagnosis for a psychiatric condition added to the claim.
In its Order affirming the January 31, 2013, claims administrator’s decision, the Office of
Judges held that because there is not a compensable psychiatric diagnosis in this claim, a
psychiatric permanent partial disability award cannot be granted. Ms. White disputes this finding
and asserts that she is entitled to a 5% psychiatric permanent partial disability award based upon
the psychiatric independent medical evaluation of Dr. Finkenbine.
The Office of Judges found that Ms. White did not submit any evidence indicating that a
psychiatric diagnosis has ever been added as a compensable component of the claim. Further, the
Office of Judges found that Ms. White has offered a psychiatric independent medical evaluation
that is more than ten years old in an effort to obtain a psychiatric permanent partial disability
award without requesting that a psychiatric condition be added as a compensable diagnosis. The
Office of Judges then concluded that Dr. Finkenbine’s 2003 recommendation cannot be utilized
as the basis for a psychiatric permanent partial disability award because there is not a
compensable psychiatric diagnosis. The Board of Review reached the same reasoned conclusions
in its decision dated February 28, 2014. We agree with the reasoning and conclusions of the
Board of Review.
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: February 3, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
2