STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

October 10, 2017 LISA A. PECJAK, RORY L. PERRY II, CLERK 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-1072 (BOR Appeal No. 2051262) 

(Claim No. 2011018465) 

WAL-MART ASSOCIATES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Lisa A. Pecjak, by Christopher J. Wallace her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Wal-Mart Associates, Inc., by 

Karin L. Weingart its attorney, filed a timely response. 

The issue on appeal is whether temporomandibular joint dysfunction (“TMJ”) should be 

added as a compensable component of the claim. This appeal originated from the January 2, 

2015, claims administrator’s decision denying the request to add cervicalgia1 and TMJ as 

compensable secondary conditions to the claim. In its April 25, 2016, Order, the Workers’ 

Compensation Office of Judges affirmed the decision. The Board of Review’s Final Order dated 

October 24, 2016, affirmed the Order of the Office of Judges. 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 The denial of cervicalgia is not on appeal before this Court. 

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Lisa A. Pecjak, a cashier, was injured in the course of her employment on November 25, 

2010, when she was struck in the left side of her face with a role of labeling tape thrown by a coworker. Ms. Pecjak finished her shift and then proceeded to the emergency room. The report 

noted that mild swelling was present over the left lower jaw with no abrasions or obvious 

bruising. A CT scan was performed and revealed no evidence of acute fracture of the facial 

bones. The mandible was intact, as well as the pterygoid plates and orbital walls. According to 

the CT scan, no focal soft tissue swelling of the face was apparent. Ms. Pecjak was diagnosed 

with left facial contusion. 

On November 29, 2010, Ms. Pecjak sought treatment from Nathan Duer, M.D., who 

assessed traumatic left TMJ and referred her to an oral surgeon for further evaluation. Ms. Pecjak 

subsequently presented to Steven Krakora, D.M.D., for treatment. She informed Dr. Krakora that 

her facial pain had started prior to the trauma but was more severe now. Dr. Krakora diagnosed 

myofascial pain syndrome secondary to bruxism (grinding of the teeth) and trauma, no evidence 

of fracture, and contusion on the mandible. Ms. Pecjak continued to seek treatment from Dr. 

Duer through January of 2011. At that time, Dr. Duer stated that there was nothing more 

medically he could do for her. His assessment remained TMJ. 

On February 17, 2011, Ms. Pecjak presented to West Virginia University School of 

Dentistry with complaints of left jaw pain resulting from trauma one year prior to the TMJ 

diagnosis. Upon palpation, there was severe popping and cracking on the left side for which no 

teeth appeared to be the cause. The assessment indicated that a left disc appeared to possibly be 

displaced. On May 3, 2011, Ms. Pecjak began seeking treatment at Cornerstone Care. Ms. Pecjak 

reported that she had recently undergone testing and was diagnosed with trigeminal neuralgia. 

Shannon Scango, PA-C, evaluated Ms. Pecjak and listed her assessment as trigeminal neuralgia 

and TMJ. 

Ms. Pecjak presented to the emergency room on June 7, 2011. She complained of pain 

from TMJ and associated pain in her left ear, as well as numbness and tingling throughout her 

left face. Ms. Pecjak also attributed a recent nose bleed to “nerve damage” from the TMJ. She 

was evaluated by Owen Lander, M.D., and Aladdin Timbayan, M.D., both of whom assessed 

TMJ and trigeminal neuralgia. Ms. Pecjak was instructed to contact her dentist. 

On September 11, 2011, Ms. Pecjak began presenting to Jefferson Pain and 

Rehabilitation Center. On that day, Ms. Pecjak was evaluated by Zheng Wang, M.D., Ph.D., and 

he reported that Ms. Pecjak was making progress with conservative management of physical 

therapy, a nerve block, and injection therapy under the diagnoses of sprain/strain of the neck, 

Teltze’s disease, left TMJ, left facial trauma, and left cervical strain. 

At some point during the course of her treatment, Ms. Pecjak requested that the diagnoses 

of TMJ and cervicalgia be added as compensable secondary conditions to the claim. Ms. Pecjak 

has an extensive and significant history of dental issues that began as early as April 6, 2005, 

when it was noted in a medical report that she had six chipped teeth. In 2006, Ms. Pecjak was 

treated for headaches and left facial pain. On June 30, 2008, Ms. Pecjak presented to the 

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emergency room with complaints of dental pain. The report noted that Ms. Pecjak had poor 

dentition. 

Ms. Pecjak’s history of poor dental hygiene continued after the compensable injury. On 

July 25, 2012, Ms. Pecjak presented to the emergency department for complaints of dental pain. 

She stated that she had multiple dental cavities. She was assessed with dental cavity and abscess, 

prescribed antibiotics, and advised to follow-up with a dentist as soon as possible. Ms. Pecjak 

returned to see Ms. Scango at Cornerstone Care on October 23, 2012, for worsening TMJ 

symptoms. Ms. Pecjak stated that she had recently seen a dentist who encouraged her to have 

some teeth pulled. On October 29, 2012, Ms. Pecjak presented to the emergency room again and 

was diagnosed with dental abscess and widespread dental decay. Ms. Pecjak then returned to Dr. 

Krakora on October 31, 2012, and it was indicated that she had severe decay and periodontal 

disease. Severe bone loss was also noted. Dr. Krakora’s plan was to extract all of the remaining 

upper teeth. After surgical extraction, the diagnosis was irreversible pulpitis and non-restorable, 

severe periodontal disease. 

In an effort to have TMJ added to the claim, Ms. Pecjak underwent an independent 

medical evaluation performed by Charles Werntz, III, D.O., on October 25, 2011. Dr. Werntz 

reported that Ms. Pecjak’s underlying injury occurred when she was struck in the side of the 

head by a roll of labeling tape at work. The diagnoses were left sided facial trauma with injury to 

the musculature overlying the side of the left jaw and TMJ on the left. Dr. Werntz reported that 

Ms. Pecjak’s symptoms were essentially untreated from the date of injury until September of 

2011. He opined that Ms. Pecjak’s current symptoms are related to the workplace injury as there 

is no evidence suggesting another cause. Dr. Werntz opined that Ms. Pecjak was not at maximum 

medical improvement and that she should complete the course of pain treatment therapy and 

physical therapy in order to reach maximum medical improvement. 

Dr. Krakora, Ms. Pecjak’s treating dentist, evaluated Ms. Pecjak on March 26, 2013, and 

noted that she had experienced facial pain for several years. He diagnosed myofascial pain 

syndrome secondary to bruxism. Dr. Krakora recommended that Ms. Pecjak see Thomas Braun, 

D.M.D., who specialized in TMJ. Ms. Pecjak was seen by Dr. Braun on April 25, 2013. Dr. 

Braun reported “an impression of traumatic osteoarthrosis, left temporomandibular joint, 

awaiting confirmation”. His plan was to have MRIs taken before considering scheduling 

arthroplasty of the left temporomandibular joint. 

On May 7, 2013, Ms. Pecjak presented to Jefferson Pain and Rehabilitation Center and 

was evaluated by Joseph Phillips, NP. The assessment was drug abuse, other mixed, or 

unspecified nondependent drug use; cervical myofascial pain syndrome; and TMJ. Mr. Phillips 

reported that Ms. Pecjak was to stop taking pain medication. Ms. Pecjak’s family discarded all of 

her pain medications in the office. Ms. Pecjak could return for injections but was not to have 

narcotics. 

Ms. Pecjak underwent a second independent medical evaluation performed by 

Christopher Martin, M.D., on May 24, 2013. Upon evaluation, the jaw revealed “normal 

alignment and no evidence of swelling, ecchymosis, or other abnormalities.” The right jaw was 

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“non-tender to palpation.” Dr. Martin noted Ms. Pecjak was “diffusely tender throughout the left 

mandible and temporomandibular joint.” She was tender to very superficial palpation. She 

opened and closed her mouth with no palpable clicking or other abnormalities. It was noted that 

Ms. Pecjak had no teeth for the entire upper area with no evidence of denture. Dr. Martin opined 

that she sustained a relatively minor contusion to the left jaw on November 25, 2010, as the 

reported mechanism of injury was minor and Ms. Pecjak had a tendency to embellish. He noted 

that the CT scan on the date of injury was completely unremarkable. Ms. Pecjak had reported 

being hit in the middle of the jaw, but the abnormalities were at the end of the jaw bone, an 

anatomically different region approximately four inches away from the site of impact. Dr. Martin 

opined that Ms. Pecjak did not sustain an injury to the temporomandibular joint as the CT scan 

performed on the date of injury definitively ruled out any fracture related to the injury. Dr. 

Martin could not find any clinical objective findings during his examination. He also noted that 

Ms. Pecjak experienced a weight gain of forty pounds which was not consistent with a 

significant jaw injury. Dr. Martin reported he was unable to explain why Ms. Pecjak continued to 

have ongoing symptoms following a minor facial contusion two and one half years prior. He 

opined that there was an underlying psychiatric diagnosis, possibly an anxiety disorder or other 

mood disturbance. Dr. Martin also opined that the documented abuse of pain medications was a 

relevant consideration and may have played a role in Ms. Pecjak’s reports of debilitating 

symptoms out of proportion to any objective abnormalities. He opined that Ms. Pecjak had fully 

recovered from the compensable injury and had reached maximum medical improvement. 

On August 27, 2013, Dr. Braun performed an open temporomandibular joint arthroplasty 

to treat traumatic arthropathy, articular disc disorder on the left side. The same procedure was 

performed on the right side on November 25, 2014. On January 2, 2015, the claims administrator 

denied Ms. Pecjak’s request to add TMJ2 as secondary conditions to the claim, stating that the 

requested conditions were not caused by or related to the compensable injury. 

Dr. Martin authored an addendum to his independent medical evaluation on November 

12, 2015. He stated that based upon a review of additional records, his opinions rendered in the 

earlier report remain unchanged and were felt to be reinforced. Dr. Martin opined there was no 

basis to ascribe a diagnosis of TMJ as a result of the compensable injury, which was supported 

by the diagnosis and subsequent surgery of the right temporomandibular joint, the opposite jaw 

of the one that she reported to have injured. The operative reports reflected that the same surgery 

was performed on both sides. Dr. Martin noted that the fact that Ms. Pecjak was symptomatic 

bilaterally was evidence against unilateral trauma as a cause. He added that there was credible 

medical evidence of poor dentition, cracked teeth, a dental abscess, and multiple dental 

extractions, some of which pre-dated her work-related injury and these symptoms could have 

overlapped with what was ascribed as TMJ. 

On April 25, 2016, the Office of Judges issued an Order affirming the claims 

administrator’s decision denying the addition of TMJ to the claim. The Office of Judges found 

that Ms. Pecjak’s argument was not persuasive and relied upon the opinion of Dr. Martin. First, 

the mechanism of injury was not serious. Ms. Pecjak was hit in the face with a role of labels. The 

2 See Supra note 1. 

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diagnosis from the emergency room was left facial contusion, which the Office of Judges noted 

is not a severe diagnosis. Secondly, Ms. Pecjak had TMJ on both the left and right and had 

surgery for both sides. The Office of Judges noted that this did not occur as a result of the 

compensable injury of a left facial contusion. Finally, the Office of Judges noted that the record 

is replete with reports concerning poor dentition, cracked teeth, dental abscesses, and multiple 

dental extractions. In fact, a note from Dr. Krakora indicated that Ms. Pecjak had facial pain for 

several years prior to 2013, which he diagnosed as myofascial pain syndrome secondary to 

bruxism. Finally, the Office of Judges noted that Ms. Pecjak’s attorney sought to have TMJ 

added as a diagnosis, not any physician. Thus, the Office of Judges denied the addition of TMJ to 

the claim. The Board of Review adopted the findings of fact and conclusions of law of the Office 

of Judges and affirmed its Order on October 24, 2016. 

We agree with the reasoning and conclusions of the Office of Judges as affirmed by the 

Board of Review. Ms. Pecjak has an established medical record showing extremely poor 

dentition that would suggest symptoms that overlap with TMJ. Additionally, Ms. Pecjak 

underwent surgery to treat TMJ on both the right and left sides, which does not suggest that the 

condition was caused by the unilateral trauma she sustained in the workplace. 

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: October 10, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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