The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MELISA THOMPSON, March 25, 2024
Claimant Below, Petitioner C. CASEY FORBES, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-437 (JCN: 2021003711)
GENESIS HEALTHCARE GROUP,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Melisa Thompson appeals the September 5, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Genesis Healthcare Group
(“Genesis”) filed a response.1 Ms. Thompson did not file a reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which granted Ms.
Thompson a 0% permanent partial disability (“PPD”) award.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Ms. Thompson was employed by Genesis as a Social Service Specialist. Ms.
Thompson filed an Employees’ and Physicians’ Initial Report of Injury dated August 6,
2020, indicating that she was exposed to and contracted COVID-19 on or around August
1, 2020, due to her employment. Ms. Thompson was hospitalized at Charleston Area
Medical Center for ten days; she was diagnosed with COVID-19, fever, cough, and
bilateral pneumonia. The claim administrator issued an order dated August 18, 2020,
holding the claim compensable for “other coronavirus not elsewhere classified.”
On September 4, 2020, Ms. Thompson was seen by Rhonda Guy, D.O. Dr. Guy
noted that Ms. Thompson had been suffering from weakness, shortness of breath with
exertion, body aches, fatigue, anxiety, depression, irritability, and vivid nightmares since
her COVID-19 diagnosis. Dr. Guy diagnosed Ms. Thompson with post-traumatic stress
disorder (“PTSD”), mixed anxiety, depressive disorder, cough, novel coronavirus,
1
Ms. Thompson is represented by Reginald D. Henry, Esq., and Lori J. Withrow,
Esq. Genesis is represented by Evan J. Jenkins, Esq.
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abnormal vision, fatigue, spasm, and diarrhea. Ms. Thompson received referrals to a
psychiatrist, a pulmonologist, an ophthalmologist, and an infectious disease physician.
The claim administrator issued orders dated October 1, 2020, and October 7, 2020,
authorizing psychiatric, ophthalmology, pulmonology, and gastroenterology consults. On
June 25, 2021, Ms. Thompson underwent a left heart catheterization that had been
authorized by the claim administrator.
On March 12, 2021, Ms. Thompson was seen by Jhapat Thapa, M.D., a cardiologist.
Dr. Thapa performed an echocardiogram, revealing normal left ventricular systolic
function with an estimated ejection fraction of 55%-60%; suboptimal study for valvular
assessment, but there appeared to be no significant stenosis/regurgitation; and no
significant pericardial effusion present. Ms. Thompson underwent a stress test on the same
day, which revealed abnormal myocardial perfusion imaging with a moderate size, mixed
anterior/lateral perfusion defect. On June 25, 2021, Ms. Thompson underwent a cardiac
catheterization performed by Dr. Thapa. In his report, Dr. Thapa noted that Ms. Thompson
had a history of morbid obesity, anxiety, and hypertension. Dr. Thapa assessed chronic
ischemic heart disease, abnormal myocardial perfusion imaging, hypertension, anxiety,
and post COVID-19 infection.
Ms. Thompson was seen by Christina Brash, NP, on November 9, 2021. Ms.
Thompson reported increased anxiety and claimed that she had none of the palpitations,
chest pains, or shortness of breath prior to her COVID-19 diagnosis. Further, Ms.
Thompson indicated that she continued to have problems with her memory, fatigue, and
daily headaches. Ms. Thompson stated that she was receiving treatment for PTSD, anxiety,
and depression. On December 20, 2021, the claim administrator issued an order authorizing
twelve visits for pulmonary rehabilitation.
George L. Zaldivar, M.D., a pulmonologist, reviewed Ms. Thompson’s medical
records and drafted a report dated February 11, 2022. Dr. Zaldivar opined that Ms.
Thompson was at maximum medical improvement (“MMI”) for her compensable
diagnosis. Dr. Zaldivar noted that a breathing study from September 30, 2021, showed a
reduced forced vital capacity and total lung capacity that had since improved. When
compared to the restrictive abnormality seen on a February 9, 2022, study, Dr. Zaldivar
opined that Ms. Thompson’s pulmonary impairment was entirely the result of obesity and
not related to her COVID-19 diagnosis. Dr. Zaldivar opined that Ms. Thompson’s untreated
obstructive sleep apnea was either causing or contributing to her nightmares and difficulty
sleeping, insomnia, and daytime drowsiness. Dr. Zaldivar noted that Ms. Thompson’s
untreated sleep apnea could cause nocturnal hypoxemia, and that episodes of pulmonary
hypertension occurring with the hypoxemia at night could result in daytime pulmonary
hypertension with damage to the right side of the heart. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993)
(“Guides”), Dr. Zaldivar placed Ms. Thompson in Class 2 of Table 8, Classes of
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Respiratory Impairment, which allows for a 10% whole person impairment (“WPI”).
However, Dr. Zaldivar opined that all of the impairment could be attributed to Ms.
Thompson’s obesity, rather than COVID-19. On February 24, 2022, the claim
administrator issued an order awarding Ms. Thompson 0% PPD based on Dr. Zaldivar’s
report. Ms. Thompson protested this order.
On February 18, 2022, Ms. Thompson was seen by Autumn Feazell, NP. Ms.
Feazell noted Ms. Thompson’s history of irritable bowel syndrome with diarrhea and
gastroesophageal reflux disease.
Bruce Guberman, M.D., evaluated Ms. Thompson on May 4, 2022. Dr. Guberman
opined that Ms. Thompson had reached MMI for her compensable condition. Using the
Guides, Dr. Guberman found 10% WPI for pulmonary impairment. Dr. Guberman
apportioned 5% of the impairment to preexisting obesity. Dr. Guberman then found 7%
WPI for difficulties with memory, concentration, and brain fog; and 10% WPI for
gastrointestinal symptoms. Using the Combined Values Chart, Dr. Guberman found 20%
WPI related to the compensable injury. Dr. Guberman deferred an impairment
determination for Ms. Thompson’s PTSD and anxiety diagnoses to a qualified psychiatrist.
On May 20, 2022, Robert Walker, M.D., an occupational medicine specialist,
evaluated Ms. Thompson as detailed in a report dated August 7, 2022. Dr. Walker opined
that Ms. Thompson was severely limited by her shortness of breath and dyspnea, chronic
diarrhea with occasional fecal incontinence, and impaired mental status. Using the Guides,
Dr. Walker found that Ms. Thompson had 10% WPI for her respiratory condition after
placing her in Class 2 of Table 8. Dr. Walker apportioned 3% of this impairment to
preexisting factors. Further, Dr. Walker found 7% WPI related to mental status and 12%
impairment for gastrointestinal symptoms. Using the Combined Values Chart, Dr. Walker
found 24% WPI for the compensable injury. Regarding Ms. Thompson’s PTSD diagnosis,
Dr. Walker deferred the impairment determination to a qualified psychiatrist.
Dr. Walker drafted a supplemental report dated September 23, 2022. Dr. Walker
noted that Ms. Thompson has reported severe diarrhea, occurring 6-12 times a day, and
experiences fecal incontinence. Additionally, Dr. Walker noted that Ms. Thompson has
reported that she continues to experience shortness of breath with mild exertion, rapid
heartbeat three to four times a week, constant fatigue, difficulty concentrating, difficulties
with short-term memory, and that she can no longer help her son with his schoolwork. Dr.
Walker further noted many ways in which Ms. Thompson’s symptoms affect her ability to
complete daily tasks and generally her ability to live a normal life. Dr. Walker opined that
a February 9, 2022, pulmonary function study revealed restrictive lung disease which is
commonly seen after COVID-19 pneumonia.
On February 23, 2023, Ms. Thompson was evaluated by Joseph Grady, II, M.D. Dr.
Grady opined that Ms. Thompson had reached MMI for her compensable diagnosis. Dr.
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Grady opined that there was not enough information from Ms. Thompson’s medical
records to indicate any neuropsychiatric impairment, and he recommended further testing.
Dr. Grady noted that Ms. Thompson was diagnosed with irritable bowel syndrome with
diarrhea, but not post-COVID-19 diarrhea. According to Dr. Grady, Ms. Thompson also
reported issues with nausea, vomiting, and acid reflux, none of which are listed by the
Centers for Disease Control as post-COVID-19 symptoms. Further, Dr. Grady opined that
there was no documentation that would allow him to say with a reasonable degree of
medical certainty that Ms. Thompson had any ratable impairment related to her
compensable diagnosis.
Ms. Thompson was evaluated by James D. Petrick, Ph.D., on May 5, 2023. Dr.
Petrick performed a comprehensive neurophysiological examination, which indicated
minimal cognitive impairment. Dr. Petrick opined that Ms. Thompson reached MMI for
her compensable diagnosis. Dr. Petrick further opined that Ms. Thompson’s symptoms
could easily be explained by depression and PTSD, and there was no measurable neuro-
cognitive impairment.
On September 7, 2023, the Board affirmed the claim administrator’s order, which
granted Ms. Thompson 0% PPD.2 The Board found that Ms. Thompson failed to establish
that she suffered permanent impairment related to her compensable diagnosis. Ms.
Thompson now appeals the Board’s order.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
2
On November 8, 2022, the claim administrator issued an order granting Ms.
Thompson a 10% PPD award for major depressive disorder and post-traumatic stress
disorder related to COVID-19, based on a September 27, 2022, report by Ahmed Faheem,
M.D. This report and order are not at issue in the instant case.
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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).
On appeal, Ms. Thompson argues that there is medical evidence establishing that
she has significant residual impairments due to her compensable injury. Further, Ms.
Thompson argues that the Board did not adequately discuss each physician’s decision to
apportion in its order. Ms. Thompson also argues that the Board should not have found the
opinion of Dr. Zaldivar more persuasive solely because he is a pulmonologist. Finally, Ms.
Thompson argues that the Board ignored medical evidence that establishes that her
symptoms did not preexist her compensable diagnosis and her testimony regarding her
impairments.3 We disagree.
Here, the Board found that the reports of Drs. Grady, Petrick, and Zaldivar, all
finding that Ms. Thompson had no impairment related to the compensable diagnosis, were
the most persuasive. The Board specifically noted that, of the evaluators of record, Dr.
Zaldivar is the only Board-Certified pulmonologist, and thus, found his opinion on
pulmonary impairment to be the most persuasive. Further, the Board found that the
opinions of Drs. Zaldivar and Grady, that Ms. Thompson’s gastrointestinal medical records
do not indicate any connection between her symptoms and her compensable diagnosis, to
be persuasive and supported by the evidence.4 Additionally, the Board found that the
reports of Drs. Guberman and Walker were not supported by the medical evidence.
Upon review, we cannot conclude that the Board was clearly wrong in finding that
Ms. Thomson failed to establish that she has permanent impairment related to her
compensable diagnosis of COVID-19, other than the 10% PPD award she has already
received for PTSD. As the Supreme Court of Appeals of West Virginia has set forth, “[t]he
‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones
which presume an agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473
S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude
3
Ms. Thompson also argues that because her symptoms did not preexist her
compensable injury, she is entitled to the presumption set forth by the Supreme Court of
Appeals of West Virginia in Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.
2d 779 (2022). Compensability is not at issue in the instant case, and we decline to extend
the application of Moore to questions of PPD and apportionment.
4
The gastrointestinal medical records referenced by Drs. Grady and Zaldivar were
not submitted into the record of this Court by either party.
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that the Board was clearly wrong in affirming the claim administrator’s order granting Ms.
Thompson 0% PPD.
We find no merit in Ms. Thompson’s argument that the Board’s order was deficient
in its discussion of the physician’s reports. While the Board could have more thoroughly
discussed each physician’s report and the reasoning each physician gave for the amount of
apportionment, we find that the Board adequately explained its reasoning for finding the
reports of Drs. Zaldivar, Petrick, and Grady to be the most persuasive based on the medical
evidence.
Additionally, we find no merit in Ms. Thompson’s argument that the Board should
not have found Dr. Zaldivar’s opinion on pulmonary impairment more persuasive solely
because he is a pulmonologist. Under the circumstances of the instant case, we find that it
was reasonable for the Board to find Dr. Zaldivar’s report the most persuasive based on his
certification as a pulmonologist and the weight of the medical evidence.
Accordingly, we affirm the Board’s September 5, 2023, order.
Affirmed.
ISSUED: March 25, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
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