                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 August 24, 2017
MARKITA MILLER,                                                                RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-0742 (BOR Appeal No. 2051116)
                   (Claim No. 2010119069)

CHARLESTON JOBS CORPS CENTER,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Markita Miller, by Edwin H. Pancake, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Charleston Jobs Corps Center, by
James W. Heslep, its attorney, filed a timely response.

       The issue on appeal is whether pain management treatment should be authorized for Ms.
Miller’s compensable injury. This appeal originated from the August 9, 2013, claims
administrator’s decision denying pain management for the condition of reflex sympathetic
dystrophy as it is not an allowed condition in the claim. In its February 2, 2016, Order, the
Workers’ Compensation Office of Judges affirmed the decision. The Board of Review’s Final
Order dated July 6, 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.

        Markita Miller, a Work-Based Learning Specialist, was injured in the course of her
employment on January 4, 2010, when she slipped and fell, landing on her right shoulder. Ms.
Miller felt immediate pain and presented to Charleston General Hospital. X-rays were taken and
no fractures or dislocations were revealed. The claim was initially held compensable for a

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shoulder sprain/strain. It was determined that an MRI would be necessary, and eventually Ms.
Miller was diagnosed with a rotator cuff tear.

       On March 17, 2010, Ms. Miller underwent an independent medical evaluation performed
by Saghir Mir, M.D. Dr. Mir diagnosed Ms. Miller with a traumatic rotator cuff injury related to
the January 4, 2010, injury; pre-existing enchondroma in the right shoulder, which was not
symptomatic; and some functional or psychological overlay. It was determined that Ms. Miller
had not yet reached maximum medical improvement and was temporarily and totally disabled.
Dr. Mir recommended that Ms. Miller undergo an arthroscopic examination of the right shoulder
with repair of the rotator cuff followed by three to four months of physical therapy. Ms. Miller
subsequently had surgery to repair her rotator cuff tear on April 30, 2010.

        On September 29, 2010, Ms. Miller began presenting at the Holzer Clinic for continued
pain. Ms. Miller saw Bruce Haupt, M.D. He stated that Ms. Miller was status post right shoulder
subacromial decompression, acromioplasty, rotator cuff repair, and labrum debridement. He saw
no further need for surgical treatment. Upon examination, Dr. Haupt noted that Ms. Miller had
significant symptom magnification. He recommended that Ms. Miller do a long progressive
course of physical therapy to gently stretch out her capsules and restore strength in her shoulder.
Dr. Haupt opined that she ought to remain working in a limited capacity at typing. Ms. Miller
returned to the Holzer Clinic on January 17, 2011, and she saw Marietta Babayev, M.D. Dr.
Babayev’s assessment was complete tear of the right rotator cuff tendon, with retraction, status
post-surgical repair and possible reflex sympathetic dystrophy in the right upper limb. Dr.
Babayev requested a bone scan to evaluate for possible complex regional pain syndrome. An
MRI of the right shoulder was also requested.

       Ms. Miller underwent an independent medical evaluation performed by David Soulsby,
M.D., on February 14, 2012. Dr. Soulsby’s impression was a rotator cuff tear of the right
shoulder which was definitely related to the allowed condition and status post-surgical repair. Dr.
Soulsby stated that there was possible chronic cervical strain syndrome or neurologic entrapment
syndrome of the right upper extremity. However, there was no evidence that these conditions
should be considered part of the compensable claim. While Ms. Miller did seem to be suffering
from chronic pain, Dr. Soulsby opined that he could not find objective evidence to indicate there
was further pathology involving the rotator cuff. He did not believe any further treatment was
warranted beyond the provision for pain management services provided by Dr. Babayev.

        On July 12, 2012, an MRI taken of Ms. Miller’s right shoulder revealed evidence of prior
rotator cuff repair. No definite recurrent tear was demonstrated. A bone scan from the same day
revealed arthritic changes. The scan was negative for reflex sympathetic dystrophy. Ms. Miller
subsequently sought treatment from Jason Pope, M.D., for her continued complaints of right
shoulder, arm, and hand pain. Dr. Pope assessed reflex sympathetic dystrophy of the upper limb
and rotator cuff rupture.

        Ms. Miller testified in a deposition regarding her compensable injury. She stated that she
hit the top part of her shoulder blade on the ground when she fell. Ms. Miller testified that she
had no prior injuries or problems with her right shoulder, arm, or hand. Ms. Miller also stated
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that some of the assertions made by Dr. Soulsby in his report were incorrect. She stated that she
gave her best effort during his evaluation. Ms. Miller also authored an undated statement in
which she noted that she underwent surgery on April 30, 2010, to repair her torn rotator cuff. She
underwent physical therapy from May of 2010 through November of 2010. Ms. Miller wrote that
she still experienced pain every day. On August 9, 2013, the claims administrator denied Ms.
Miller’s request for pain management for the condition of reflex sympathetic dystrophy as it was
not a compensable component of the claim.

       Ms. Miller continued to suffer pain and sought treatment independently. Through Ms.
Miller’s private insurance, she eventually underwent surgery for her cervical spine. On January
30, 2014, Ms. Miller presented at Charleston Area Medical Center for complaints of severe pain.
The report noted that she had a longstanding history of pain due to severe cervical neck
degenerative changes and discitis. On February 17, 2017, Ms. Miller presented to Neurological
Associates and reported that she was extremely pleased with her cervical spine surgery. She no
longer had any neck or arm pain. On February 25, 2017, Ms. Miller saw Fatima Aziz, M.D., who
noted that Ms. Miller reported her extreme neck and arm pain were gone after undergoing back
surgery.

       On February 2, 2016, the Office of Judges affirmed the claims administrator’s decision
denying pain management for the condition of reflex sympathetic dystrophy. The Office of
Judges reviewed Charleston Jobs Corps Center’s closing argument in which it stated that Ms.
Miller’s alleged diagnosis of reflex sympathetic dystrophy has never officially been recognized
as a compensable component of the claim. Although Dr. Pope and Dr. Babayev diagnosed the
condition in 2012, their diagnoses have been proven inaccurate by the resolution of Ms. Miller’s
symptoms following cervical surgery. Charleston Job Corps Center stated that no post-surgical
evaluator has diagnosed Ms. Miller with reflex sympathetic dystrophy or even noted any
symptoms associated with reflex sympathetic dystrophy. The Office of Judges noted that a bone
scan report of the right shoulder dated July 12, 2012, was negative for reflex sympathetic
dystrophy. The Office of Judges concluded that reflex sympathetic dystrophy is not a
compensable component of the claim and denial of pain management treatment for reflex
sympathetic dystrophy is appropriate. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on July 6, 2016.

      We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. Reflex sympathetic dystrophy has never been added as a compensable
component of the claim. Ms. Miller alleges that her pain was a result of this condition, yet her
symptoms disappeared after undergoing surgery on her cervical spine, which was unrelated to
her compensable injury. The medical evidence of record supports the conclusion that reflex
sympathetic dystrophy is not a compensable condition and thus denial of any treatment for reflex
sympathetic dystrophy is appropriate.

        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.
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                                        Affirmed.

ISSUED: August 24, 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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