STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

December 11, 2015 

RORY L. PERRY II, CLERK 

SHAYNE BITTINGER, 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 13-1288 (BOR Appeal No. 2048479) 

(Claim No. 2012004785) 

GREENBRIER HOTEL CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Shayne Bittinger, by Patrick K. Maroney, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Greenbrier Hotel Corporation, by 

Gary W. Nickerson and James W. Heslep, its attorneys, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in 

which the Board affirmed a May 21, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 22, 2011, 

decision to reject the claim. 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. Bittinger, an employee of Greenbrier Hotel Corporation, alleges that on July 28, 

2011, he was using a new sprayer when he accidently sprayed himself with Quali-Pro 

Mefenoxam. On August 3, 2011, Mr. Bittinger reported to Greenbrier Medical Center with a rash 

across his chest and arms that started two days prior. Mr. Bittinger asserts that he told Greenbrier 

Medical Center that he was exposed to Quali-Pro Mefenoxam at work. However, their medical 

records indicate that he could not identify what he was exposed to that caused the rash. The 

original diagnosis based upon physical examination was contact dermatitis. Randall Short, D.O., 

and Marsha Bailey, M.D., both performed a record review in this case. Both doctors opined that 

the alleged Mefenoxam exposure at work was not the cause of Mr. Bittinger’s symptoms. Dr. 

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Short relied on the six day gap between the symptoms and Mr. Bittinger’s statement that he 

thought the Mefenoxam might have caused his reaction. Dr. Bailey opined, nearly a year and a 

half after the injury and without physical examination, that the original diagnosis of contact 

dermatitis was wrong. Dr. Bailey then described the symptomatology and how it related to serum 

sickness. She stated that serum sickness is a form of urticarial and or angioedema disorders and 

is a disorder of the immune system which is unrelated to his exposure to Mefenoxam. The 

disorders are characterized by the occurrence of fever, urticarial polyarthralagias, and 

lymphadenopathy seven to ten days after primary exposure to a protein or antigen such as a drug 

or infection. Dr. Bailey opined that Mr. Bittinger’s symptoms were classic examples of serum 

sickness that started as an immunological mediated skin disease misdiagnosed as contact 

dermatitis. She opined that the likely cause was a drug reaction. Dr. Bailey then noted that Mr. 

Bittinger had a history of skin rashes and hives in response to Niaspan and itching in response to 

Tri-cor. Mr. Bittinger also reported a history of allergic reaction to penicillin. Dr. Bailey 

indicated that Mefenoxam has the potential for skin irritation but it does not cause dermal 

sensation of systemic symptoms or immune system response. Dr. Bailey then noted that Mr. 

Bittinger’s immune system responded to whatever he was exposed to because his white blood 

cell count was elevated. 

The Office of Judges determined that Mr. Bittinger did not suffer from contact dermatitis 

in the course of and as a result of his employment with Greenbrier Hotel Corporation. The Office 

of Judges found that Dr. Bailey’s report was more persuasive and consistent with the other 

evidence of record. Dr. Bailey stated that contact dermatitis should not cause an immune system 

response, whereas serum sickness would cause an immune system response. Dr. Bailey then 

noted that Mr. Bittinger’s white blood cell count came back as elevated, which indicated that his 

immune system responded. Dr. Bailey opined that Mr. Bittinger’s reaction was not caused by his 

exposure to Mefenoxam but was caused by either an exposure to a drug or an infection. The 

Office of Judges also stated that its decision was supported by the fact that Mr. Bittinger has had 

reactions to numerous medications in the past. As a result, the Office of Judges determined that 

Mr. Bittinger’s symptoms were caused by serum sickness that is unrelated to his work at 

Greenbrier Hotel Corporation. The Board of Review adopted the findings of the Office of Judges 

and affirmed its Order. 

We agree with the findings of the Office of Judges and Board of Review. The Office of 

Judges and Board of Review did not err in finding that Dr. Bailey’s report was more persuasive 

and consistent with the other evidence of record. Dr. Bailey demonstrated that contact dermatitis 

should not cause an immune system response, whereas serum sickness would cause an immune 

system response. Dr. Bailey then noted that Mr. Bittinger’s white blood cell count came back as 

elevated, which indicated that his immune system responded. Dr. Bailey opined that Mr. 

Bittinger’s reaction was not caused by his exposure to Mefenoxam but was caused by either an 

exposure to a drug or an infection. This inference was further supported by the fact that Mr. 

Bittinger has had reactions to numerous medications in the past. Because the evidence was 

consistent with a finding that Mr. Bittinger suffered from serum sickness as opposed to contact 

dermatitis, the Office of Judges and Board of Review did not err in finding that his symptoms 

were caused by an illness unrelated to his employment with Greenbrier Hotel Corporation. 

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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: December 11, 2015 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

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