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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

PRINCETON COMMUNITY HOSPITAL ASSOCIATION

, Employer Below, Petitioner

vs.) No. 19

- 0182 (BOR Appeal No. 2053481 )

(Claim No. 2013002508 )

ALECIA JOHNSON

, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Princeton Community Hospital Association , by Counsel Toni J. Williams

, appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”) . Alecia Johnson , by Counsel Gregory S. Prudich , filed a timely response.

The i ssue on appeal is permanent partial disability . The claims administrator gra nted a 5% permanent partial disability award on November 15, 2016 . The Office of Judges reversed the decision in its September 21, 2018 , Order and granted an additional 13% permanent partial disability award for a total of 18% impairment . The Order was aff irmed by the Board of Review on February 4, 2019

.

The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. The facts and legal arguments are adequately presented, an d 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 me morandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Ms. Johnson, a registered nurse, was injured in the course of her employment on July 22, 2012, when a patient fell and grabbed her neck and right shoulder. She treated with Robert Kropac,
M.D., on August 29, 2012. He noted that Ms. Johnson’s head tilt was not as it would be if she had torticollis. Dr. Kropac diagnosed cervicodorsal musculoligamentous strain superimposed on congenital C4

- 5 fusion. He noted a significant amount of symptom magnification and recommended a functional capacity evaluation. 

### FILED

February 13, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

On March 15, 2013, Elizabeth Killoran, M.D., of the WVU Movement Disorders Clinic,

evaluated Ms. Johnson. She noted that Ms. Johnson had a right

- sided head tilt and constant severe pain. Dr. Killoran also observed severe abnormal neck positioning, but she could not make a diagnosis due to constant, active muscle contraction. Dr. Killoran found range of motion limitations which appeared to be intentional. She diagnosed post

- traumatic cervical dystonia. She opined that the onset and examination indicates a psychological etiology for Ms. Johnson’s

cervical condition and strongly recommended counseling. Focal torsion dystonia 1 and spasmodic

torticollis 2 were added t o the claim as compensable conditions on October 29, 2012.

An August 27, 2013, treatment note by Richard Bowman, M.D., indicates Ms. Johnson reported neck pain that radiated into her right arm and shoulder. She also had occasional numbness

in the fourth and fifth fingers on her right hand. Dr. Bowman diagnosed right

- sided spasmodic torticollis of the right neck and recommended injections. Ms. Johnson underwent injections and followed up on December 19, 2013. At that point, she reported 50% pain re lief from the injections. The finger numbness resolved but she still had some pain and a slight head tilt. Dr. Bowman diagnosed cervicalgia, cervical radiculopathy, and cervical dystonia. On September 2, 2014, Ms.
Johnson’s cervical torticollis had improve d. The injections of Myobloc were providing immense symptom relief. She requested physical therapy to improve her range of motion. Dr. Bowman suggested a functional capacity evaluation. On December 30, 2014, Ms. Johnson reported 50

- 60% pain relief followin g Myobloc injections. She still had right

- sided neck pain radiating into the right

shoulder. On May 8, 2015, Ms. Johnson continued to report relief as a result of the injections. Dr. Bowman recommended continuing the injections.

Paul Bachwitt, M.D., perf ormed an independent medical evaluation on January 20, 2015,

in which he noted that Ms. Johnson reported pain, constant muscle spasms and contractions, and an inability to be up for more than three and a half hours at a time. Cervical range of motion could

not be measured. Her right shoulder was elevated with muscle spasms and her head tilted to the

r ight. Dr. Bachwitt found that Ms. Johnson had not reached maximum medical improvement and recommended additional injections.

On September 3, 2015, Ms. Johnso n returned to Dr. Bowman. She reported a 50

- 60% reduction in pain after Myobloc injections; however, she still had constant neck and right shoulder pain. Dr. Bowman diagnosed spasmodic torticollis, dystonia musculorum deformans, cervical radiculopathy, and complex regional pain syndrome.

Dr. Bachwitt performed an independent medical evaluation on January 26, 2016, in which

he found that Ms. Johnson had not reached m aximum medical improvement. He recommended an EMG/NCS and continued Myobloc injections. He stated that she would likely need injections for the foreseeable future. He opined that she was not capable of even sedentary work.

1 Focal torsion dystonia is a disease characterized by painful muscle contractions resulting

in uncontrollable distortions.

2 Spasmodic torticollis is a condition that causes the neck to involuntarily turn left, right,

up, or down.3

Prasadarao Mukkamala, M.D., per formed an independent medical evaluation on October
17, 2016, in which he diagnosed cervical sprain and found that Ms. Johnson had reached maximum medical improvement. Dr. Mukkamala assessed 0% range of motion impairment because she

failed to meet the vali dity criteria. He found 4% impairment under Category II

- B of Table 75 of

the A merican M edical A ssociation’s Guides to the Evaluation of Permanent Impairment (4 th ed. 1993) . Dr. Mukkamala placed Ms. Johnson in Cervical Category II of West Virginia Code of S tate Rules § 85

- 20

- E and adjusted the rating to 5%. The claims administrator granted a 5% perm anent partial disability award on November 15, 2016, based on Dr. Mukkamala’s evaluation.

On April 24, 2017, Stephen Thomas, M.D., performed a record review in w hich he opined

that Dr. Bowman’s decision to increase Ms. Johnson’s injections to every two months was not medically reasonable, necessary, or appropriate for her care. Ms. Johnson testified in a July 7,
2017, deposition that after she was injured, her rig ht shoulder and neck began spasming and locked up, causing her ea r to touch her shoulder. Her neck has been in this position since the injury. Botox injections help her pain and allow her to somewhat function. Ms. Johnson admitted that she had a

cervical i njury in 2004 that caused her to miss six months of work; however, she asserted that her current injury is much worse.

Bruce Guberman, M.D., performed an independent medical evaluation on July 18, 2017, in which he diagnosed post

- traumatic cervical spasm odic torticollis. He determined that Ms.

Johnson had reached maximum medical improvement. He assessed 44% whole person impairment using the A merican M edical A ssociation’s Guides . Dr. Guberman placed Ms. Johnson in Cervical Category II of West Virginia Code of State Rules § 85

- 20

- E and adjusted the rating to 8%. He assessed 11% range of motion impairment. His total combined impairment rating was 18%.

In a November 14, 2017, supplemental report, Dr. Mukkamala op ined that Ms. Johnson’s compensable injury resulted in a cervical sprain. He disagreed with the diagnosis of spasmodic

torticollis. Dr. Mukkamala opined that she showed significant symptom magnification and reiterated his finding of 5% whole person impairm ent. Dr. Mukkamala disagreed with Dr. Guberman’s finding of 18% impairment. Dr. Mukkamala stated that Ms. Johnson did not actually injure her right shoulder and that she was controlling the movement of her shoulder as part of her symptom magnification. Dr. Mukkamala further asserted that Dr. Guberman’s assessment of 4 4 % impairment for loss of range of motion was absurd.

Dr. Bowman testified in a January 18, 2018, deposition that Ms. Johnson has spasmodic torticollis and focal dystonia as a result of a dam aged nerve resulting from her work

- related trauma. He stated that Myobloc injections helped her symptoms. These injections had to be performed under sedation and Dr. Bowman stated that it was still quite difficult to move Ms. Johnson’s head into position f

or the injection. He stated that it sometimes took three people. After the injections, she was capable of hold ing her head in an upright position. Dr. Bowman opined that Ms. Johnson ’s condition was permanent and incurable. He asserted that he had seen no e vidence of malingering.

Dr. Thomas testified in a deposition on March 12, 2018, that torticollis is rarely associated

with trauma. He noted that Dr. Killoran’s examination of Ms. Johnson showed active contraction of the cervical muscles and voluntary res ponse from her . These findings were not consistent with4

cervical torticollis. Dr. Thomas testified that there is no medical condition that causes a person to live with their head continuously in one position. He opined that Ms. Johnson was simply choosing

not to move her head. Dr. Thomas noted that she injured her neck in 2004 and claimed an inability

to move her head after. Dr. Thomas found no evidence in her medical records to support diagnoses of focal torsion dystonia or spasmodic torticollis. Dr. Thoma s stated that the cervical MRI showed that the right shoulder was no t elevated and the neck was relatively straight, which was inconsistent with focal dystonia or spasmotic torticollis. He also opined that Myobloc injections were not medically reasonable o r necessary. Dr. Thomas concluded that Ms. Johnson sustained a cervical strain as the result of her compensable injury. He stated that the pain she reported was out of proportion to any injury she could have sustained with the mechanism of injury reported.

The Office of Judges reversed the claims administrator ’s decision and granted an additional 13% permanent partial disability award above and beyond the 5% award already granted. The Office of Judges found that the record contains two independent medical evaluations which assessed impairment. Dr. Mukkamala diagnosed cervical strain and assessed 5% impairment. He

did not evaluate the right shoulder and opined that Ms. Johnson did no t suffer from spasmodic torticollis. Dr. Guberman diagnosed cervical spasmodic torticollis and assessed 18% impairment. The Office of Judges concluded that Dr. Guberman’s assessment was the most reliable and

accurate of record. It noted that Dr. Mukkamala refused to accept the diagnosis of spasmodic torticollis as a compensable condition. Therefore, he did not rate the compensable condition in the claim. The Office of Judges further determined that Dr. Mukkamala failed to recommend any impairment for the ri ght shoulder. The Office of Judges found that the weight of the evidence of record indicates that the compensable diagnoses of spasmodic torticollis and focal torsion dystonia directly affect Ms. Johnson’s right shoulder range of motion. Dr. Bowman, her tr eating physician, opined in his testimony that Ms. Johnson’s right shoulder is shrugged and she is unable to relax the muscles. Both Drs. Bachwitt and Guberman noted significant right shoulder range of motion limitations. Though Dr. Bachwitt did not specif ically rate the right shoulder range of motion impairment, his measurements show 18% impairment, the same as Dr. Guberman’s rating. The Office of Judges concluded that Ms. Johnson has a ratable impairment of the right shoulder as a result of the compensabl e injury. Because he failed to consider the conditions held compensable in this case, Dr. Mukkamala’s assessment was deemed to be unreliable.

The Office of Judges noted that the employer’s evidence and arguments rested upon the

assertion that Ms. Johnson does not have focal dystonia or spasmodic torticollis. These conditions have been held compensable in the claim

, and the Office of Judges concluded that the issue of compensability of the diagnoses was settled. As Dr. Guberman was the only evaluator of re cord to properly evaluate the compensable conditions in the claim, his report was determined to be the most reliable of record. Therefore, the Office of Judges granted an additional 13% impairment above and beyond the 5% already granted in this claim. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on February 4, 2019.

After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. T he issue at bar is the amount of permanent partial disability

Ms. Johnson sustained as a result of her compensable injury. The conditions of spasmodic torticollis and focal dystonia have been held compensable in this claim. Therefore, any rating for5

impair ment should include these conditions. There were only two evaluations of record in which

a physician assessed an impairment rating. As Dr. Mukkamala refused to consider the conditions already held compensable, Dr. Guberman’s report was the only one of reco rd to rate Ms. Johnson’s compensable conditions. His finding of 18% impairment is in accord with the evidence of record. Regarding the allegations of symptom magnification, Dr. Bowman testified that Ms. Johnson receives her Myobloc injections while under s edation. While sedated, Dr. Bowman stated that her neck is very difficult to maneuver and it sometimes takes two or three people to position her head. This indicates that her spasmodic torticollis is involuntary.

F or the foregoing reasons, we find that th e 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 so clearly wrong based upon the evidentiary record that even when all

inferenc es are resolved in favor of the Board of Review’s findings, reasoning and conclusions, there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review

is affirmed.

Affirm ed.

ISSU ED: February 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison