                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
ELAINE SQUIRE,                                                                      May 29, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 18-0163 	 (BOR Appeal No. 2052159)
                     (Claim No. 2012034033)

AUGMENTATION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner, Elaine Squire by Robert L. Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Augmentation, Inc., by Steven
Wellman, its attorney, filed a timely response.

       The issue on appeal is the compensability of an additional diagnosis. On January 23,
2017, the claims administrator denied a request to add left shoulder impingement as a
compensable component of the claim. The Office of Judges affirmed the claims administrator in
its August 15, 2017, Order. The Order was affirmed by the Board of Review on January 31,
2018. 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.

        Ms. Squire, a laborer, injured her left thumb and elbow on September 15, 2011, when she
was using a drill and the drill slipped and caught the glove on her left hand. The following day
she was treated in the emergency room at City Hospital where she was diagnosed with a mild
sprain/strain of her left elbow. Her claim was held compensable for a left elbow sprain.

        On September 28, 2012, Thomas E. Knutson, D.O., treated Ms. Squire for complaints of
pain in the left wrist and elbow. Dr. Knutson diagnosed lateral epicondylitis of the left elbow,
tendonitis of the left wrist, and left shoulder impingement syndrome. He opined that he could not
relate the shoulder impingement syndrome to the work injury.
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         Joseph Grady, M.D., performed an independent medical evaluation on March 12, 2014,
during which he listed chief complaints of left thumb, elbow, and shoulder discomfort. Ms.
Squire advised Dr. Grady that she was using a power drill to drill holes in metal frames of
vending machines when the glove on her left hand got caught on the power drill. The spinning
drill jerked and twisted her left arm. She was able to return to work until she was laid off in
February of 2013. She was working in a retail position at the time of the evaluation. Ms. Squire
reported difficulty using her left arm. Dr. Grady noted most of Ms. Squire’s tenderness was in
the region of the left trapezius, as well as mild tenderness to palpation of the lateral epicondyle of
the left elbow. Dr. Grady diagnosed left elbow lateral epicondylitis, left thumb myofascial
sprain, and mild left shoulder impingement. In his opinion, Ms. Squire originally injured her left
thumb and left elbow. There was no mention of the left shoulder being involved until eight
months later on May 12, 2012. He noted that Ms. Squire had some mild impingement of the left
shoulder but he could not attribute that to her injury. He opined that a left hand MRI would be
appropriate to see if she would be a surgical candidate for the left thumb or left elbow. Treatment
for the left shoulder would not be reasonable as he could not relate it to her injury. Dr. Grady
also recommended physical therapy and opined Ms. Squire would be at maximum medical
improvement after the therapy.

        On August 28, 2014, Joseph Hahn, M.D., an orthopedist, evaluated Ms. Squire for a chief
complaint of shoulder pain involving the left upper arm, left shoulder, and left hand. He noted
Ms. Squire had been treated with non-steroidal anti-inflammatories, physical therapy for two
weeks, and a subacromial steroid injection, none of which relieved her pain. Diagnostic studies
including an MRI and x-rays were negative. Dr. Hahn diagnosed left arm pain located on the left
wrist joint. He opined that there was significant secondary gain with the injury. He did not
recommend surgery. He suggested an EMG or hand specialist to rule out reflex sympathetic
dystrophy or chronic regional pain syndrome.

       On March 25, 2015, Dr. Grady performed a second independent medical evaluation for
chief complaints of left thumb, left elbow, and left shoulder discomfort. He noted a slight
decrease in range of motion of the left thumb and left elbow. He saw no indication of reflex
sympathetic dystrophy or chronic regional pain syndrome. Dr. Grady diagnosed left thumb strain
with reported chronic avulsion of ulnar collateral ligament on MRI, left elbow lateral
epicondylitis, left wrist de Quervain’s tenosynovitis, and left elbow pain with likely
impingement. Dr. Grady believed Ms. Squire has some impingement in the shoulder, but as there
was no documentation of any left shoulder symptoms until eight months after the injury, he
could not specifically attribute the left shoulder symptoms to the injury.

       On September 19, 2015, Ms. Squire presented to the emergency room at City Hospital
with complaints of left arm pain and swelling. She provided a history of having the pain for four
years with increased pain over the past few weeks. She was diagnosed with acute exacerbation of
chronic left elbow pain, left shoulder pain, and hypertension. She was placed on an oral steroid
and Ultram and told to follow up with her family physician.


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       Ms. Squire sought treatment from Dr. Knutson for the first time in about a year on July
25, 2016. Dr. Knutson diagnosed impingement syndrome of the left shoulder and lateral
epicondylitis of the left shoulder. He gave her injections in both areas and advised she get a
second opinion from an upper extremity specialist or pain management physician.

        In a Diagnosis Update Report dated December 9, 2016, Dr. Knutson lists a primary
diagnosis of left shoulder impingement syndrome and secondary diagnoses of left elbow
tendonitis and left thumb sprain. The physician noted that the explanation for the clinical
findings on which the diagnoses were based could be found in the dictation notes. The signature
of the physician is unintelligible. No notes were attached to the report.

       On December 29, 2016, Ms. Squire testified via deposition that she had constant pain in
her arm that extends to her shoulder. Dr. Knutson referred her to pain management. She saw Dr.
Hahn one time and he suggested she see a reflex sympathetic dystrophy or complex regional pain
syndrome specialist. She has received physical therapy and injections to her elbow and shoulder.
No treatment has helped her pain. Ms. Squire denied having any previous injury to her left upper
extremity. There was a two-year period of time in which she did not seek any medical treatment.
She saw Dr. Knutson in May of 2015 and did not return to see him until July of 2016. She was
evaluated by Dr. Hahn in 2014.

        On January 23, 2017, the claims administrator denied Dr. Knutson’s request to add left
shoulder impingement as a compensable component of the claim. The Office of Judges affirmed
the claims administrator’s decision in its August 5, 2017, Order. It determined that Ms. Squire’s
shoulder symptoms did not appear immediately following the injury but appeared eight months
later. Dr. Knutson, her treating physician, originally opined that the left shoulder impingement
was unrelated to the injury. The Office of Judges determined that no reasoning was given for Dr.
Knutson’s request to now have the condition added as compensable. Additionally, Dr. Grady,
who performed two evaluations of Ms. Squire, opined that the left shoulder impingement was not
related to the work injury. Therefore, the Office of Judges found that it was unlikely that the left
shoulder impingement was part of the compensable injury, and the claims administrator acted
properly in denying the addition of the condition as compensable. The Board of Review adopted
the findings of fact and conclusions of law of the Office of Judges and affirmed its Order.

        After review, we agree with the reasoning and conclusion of the Office of Judges as
affirmed by the Board of Review. Ms. Squire failed to show that the left shoulder impingement
was related to her injury. Therefore, the Board of Review did not err when it affirmed the denial
of the condition as compensable.

        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: May 29, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker




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