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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

PATRICK SHAW,

Claimant Below, Petitioner

vs.) No. 19-0556 (BOR Appeal No. 2053611)

(Claim No. 2018002692)

 

AVALOTIS CORPORATION, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Patrick Shaw, by Counsel J. Robert Weaver, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). Avalotis Corporation, 

by Counsel Robert J. D’Anniballe Jr., filed a timely response.

The issue on appeal is compensability. The claims administrator rejected the claim on July 

18, 2017. The Office of Judges affirmed the decision in its October 31, 2018, Order. The Order 

was affirmed by the Board of Review on May 17, 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, 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. Shaw, a painter, alleges that he was injured when he was exposed to fumes at work. A

November 16, 2016, treatment note from Marietta Memorial Hospital indicates Mr. Shaw was seen 

for excessive sweating and vomiting. He reported that he was working in a tank the day before, 

when the symptoms began. He stated that emergency workers performed a blood test, which 

revealed that his glucose was low. He was treated and his symptoms somewhat improved. It was 

noted that a complete blood count showed hemoconcentration elevation of carbon dioxide. He was 

transferred to Camden Clark Medical Center.

Mr. Shaw reported to Camden Clark Medical Center that he was working in an enclosed 

tank for the past two days and had experienced vertigo, tinnitus, and headaches. An MRI and MRA 

FILED

July 31, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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of the brain were normal. A brain CT scan was compared to a prior May 10, 2009, scan and it was 

noted that there were no significant findings. A chest x-ray showed hypoventilatory changes and 

cardiac silhouette enlargement. A brain MRI was unremarkable. A carotid doppler showed no 

significant stenosis in either carotid artery. Mr. Shaw was diagnosed with possible heat stroke, 

hypertension, and anxiety. Mr. Shaw was seen by Michael Morehead, M.D., while he was in the 

hospital. Dr. Morehead noted that a stroke assessment was negative and that Mr. Shaw likely had 

peripheral labyrinthine disorder. He was discharged on November 18, 2016, with diagnoses of 

dizziness, hypertension, anxiety, and polycythemia. 

A November 25, 2016, treatment note from Marietta Memorial Hospital indicates Mr. 

Shaw reported dizziness and the new onset of slurred speech. He stated that the symptoms began 

a week prior while he was at work. It was noted that at the time, he was wearing a full respirator.

The assessment was likely Bell’s palsy. Treatment notes from Camden Clark Hospital on 

November 28, 2016, indicate Mr. Shaw was seen for facial drooping. A CT scan of the brain 

showed no acute intracranial process. He was diagnosed with Bell’s palsy. 

Mr. Shaw was treated at Parkersburg Neuro Associates, Inc., on December 6, 2016. The 

notes indicate he was seen by Dr. Morehead who noted that Mr. Shaw no longer had vertigo. A 

week after the initial incident, Mr. Shaw stated that he awoke with facial paralysis on the left side. 

He was diagnosed with Bell’s palsy. It was noted on examination that he had severe left peripheral 

facial paralysis. He was diagnosed with facial nerve palsy. On April 26, 2017, Dr. Morehead noted 

that Mr. Shaw developed left facial paralysis three weeks after the initial incident, which gradually 

improved. He then experienced right ear deafness. After steroid treatment, Mr. Shaw saw 

improvement in his hearing. Dr. Morehead diagnosed cranial neuropathies, likely autoimmune in 

nature. On August 8, 2017, Mr. Shaw reported drawing in his face with left eye blurriness. Dr. 

Morehead again diagnosed facial nerve palsy. 

On March 28, 2017, Mr. Shaw sought treatment at ENT Allergy Associates and was 

diagnosed with right ear hearing loss. The following day, he was seen by Gregory Krause, M.D.

Dr. Krause indicate Mr. Shaw was wearing a respirator while at work in November of 2016 when 

he developed sudden dizziness. He was diagnosed with asymmetrical hearing loss, Bell’s palsy, 

dizziness, and giddiness. On April 11, 2017, Dr. Krause noted that Mr. Shaw was experiencing 

dizziness, spinning, and right ear tinnitus. He still had left fascial paralysis. The diagnoses 

remained the same. 

Mr. Shaw returned to Dr. Morehead on April 26, 2017, and reported improvement in his 

hearing following steroid treatments. The diagnosis was multiple cranial neuropathies, likely 

autoimmune based. That same day, Mr. Shaw was also seen by Dr. Krause for increased spinning 

and dizziness but believed his hearing had improved. An MRI of the brain was performed on April 

29, 2017, and showed no acute findings. Mr. Shaw was again treated by Dr. Morehead on August 

8, 2017. The treatment note indicates Mr. Shaw was treated at Ohio State University several times,

and there was still no known cause of his multiple cranial neuropathies. 

The claims administrator rejected the claim on July 18, 2017. On October 31, 2018, the 

Office of Judges affirmed the claims administrator’s decision. It found that Mr. Shaw initially 
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reported dizziness and vomiting after working in an enclosed environment. However, his 

symptoms and conditions then evolved for many months. Dr. Morehead stated that he could not 

ascertain the cause of the unusual symptoms. The Office of Judges also found that there is no 

indication in the record of what chemicals Mr. Shaw may have been exposed to or the effects they 

can have. The only medical report of record attributing hissymptoms to his workplace is the Report 

of Injury, which was completed long before Mr. Shaw’s symptoms expanded. Further, he was 

diagnosed with Bell’s palsy. The Office of Judges concluded that while Mr. Shaw’s symptoms 

began at work, he has failed to show that they were the result of his work. The Board of Review 

adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its decision

on May 17, 2019.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. Though Mr. Shaw’s symptoms began at work, there is no 

evidence in the record that they were a result of his employment. The substance or substances that 

Mr. Shaw may have been exposed to are not identified. Therefore, a causal connection cannot be 

made. 

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: July 31, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker 

Justice Evan H. Jenkins

Justice John A. Hutchison