                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

MARIA R. SHELTON,                                                                         FILED
Claimant Below, Petitioner                                                             November 15, 2019
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
vs.)   No. 18-0968 (BOR Appeal Nos. 2052760 and 2052940)                               OF WEST VIRGINIA

                   (Claim No. 2016029340)

DEEPWELL ENERGY SERVICES,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Maria R. Shelton, by Counsel Robert L. Stultz, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Deepwell Energy
Services, by Counsel Jeffrey B. Brannon, filed a timely response.

        The issues on appeal are medical benefits, temporary total disability, additional
compensable conditions and travel reimbursement. The claims administrator denied the addition
of right hip arthritis to the claim on July 10, 2017. On September 19, 2017, it denied a reopening
of the claim for temporary total disability benefits. On October 2, 2017, the claims administrator
denied a request for travel reimbursement. The Office of Judges affirmed the decisions in its March
16, 2018, Order. The Order was affirmed by the Board of Review on September 26, 2018. The
claims administrator denied a right psoas tendon injection and greater trochanteric bursa injection
on September 18, 2017. On September 19, 2017, it denied physical therapy. On February 21, 2018,
the claims administrator denied an ultrasound guided tendon injection of the right hip. The Office
of Judges affirmed the decisions in its May 22, 2018, Order. The Order was affirmed by the Board
of Review on September 26, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Shelton, a laborer, was injured in the course of her employment on May 11, 2016,
when she fell from the bed of her truck. The Employees’ and Physicians’ Report of Injury indicates
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she injured her right side in the fall. She was treated at Stonewall Jackson Memorial Hospital and
diagnosed with right shoulder sprain, right rib cage contusion, and right hip contusion. It was noted
that she had preexisting right shoulder pain for which she was currently undergoing treatment. Ms.
Shelton followed up with Freddie Persinger, D.O., on May 16, 2016. After examination, Dr.
Persinger diagnosed right arm contusion and subacromial impingement of the right shoulder. Ms.
Shelton was to be off of work for two weeks and to do home exercises. On May 26, 2016, she was
seen for follow up, and Dr. Persinger diagnosed right groin strain.

        A right shoulder MRI was performed on June 25, 2016, and showed degenerative changes
in the acromioclavicular joint with small osteophytes that slightly impinged on the supraspinatus
tendon. It also revealed tendinopathy at the insertion of the supraspinatus tendon. Treatment notes
from Country Roads Physical Therapy indicate Ms. Shelton was to have physical therapy for
twelve weeks. It was noted that her shoulder pain began in November of 2015 and worsened after
her May 11, 2016, fall.

        On April 26, 2016, Ms. Shelton sought treatment from Chad Poage, D.O. He indicated that
Ms. Shelton saw his partner, Chad Micucci, M.D., the week prior. Dr. Micucci recommended a
diagnostic arthropathy of the right shoulder. Ms. Shelton continued to have pain in the shoulder
that limited her range of motion. Physical therapy worsened the pain. Dr. Poage diagnosed rotator
cuff tendinopathy in the right shoulder. On August 3, 2016, Dr. Poage performed a diagnostic
arthroscopy of Ms. Shelton’s right shoulder. He performed extensive debridement of the
glenohumeral and rotator cuff departments along with subacromial decompression for a partial
rotator cuff tear and impingement syndrome. The diagnosis was listed as rotator cuff tear or rupture
of the right shoulder, not specified as traumatic.

        Ms. Shelton testified in an August 24, 2016, deposition that physical therapy alleviated
some of her right hip pain but she was still unable to squat. She stated that she had no right hip
pain prior to the compensable injury. She was undergoing treatment for her right shoulder at the
time of her injury, but she missed no work for it. After her compensable fall, her right shoulder
pain increased and she was unable to use her shoulder. She has not returned to work since her
injury. Ms. Shelton stated that she was not on any medication for her right shoulder or hip prior to
the compensable injury. She testified that she underwent shoulder surgery by Dr. Poage, and all
treatment with him was billed under her regular insurance.

        A September 13, 2016, treatment note by Dr. Poage indicates Ms. Shelton was doing well
post-surgery and her shoulder was improving. She still had right groin pain as well as popping and
catching in the right hip. The diagnoses were listed as status post right shoulder arthroscopy and
ongoing right hip pain with possible labral tear. A right hip MRI was performed on September 28,
2016, and showed an oblique tear of the anterior superior right hip labrum. Ms. Shelton returned
to Dr. Poage on October 13, 2016, with complaints of significant groin pain and right-sided genital
pain with movement. The pain had been present for six months and rendered Ms. Shelton unable
to do normal activities. Dr. Poage noted that the MRI showed a labral tear. He referred her to a hip
arthroscopy specialist.


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        On November 11, 2016, Jonathan Luchs, M.D., performed an age of injury analysis of the
June 25, 2016, right shoulder MRI. Dr. Luchs noted that the MRI reader found degenerative
changes of the acromioclavicular joint and tendinopathy at the insertion of the supraspinatus
tendon. Dr. Luchs concurred and additionally stated that he saw no evidence of tears. He found
acromioclavicular joint arthropathy and subacromial impingement resulting in tendinosis and
bursitis. He concluded that the MRI showed findings of subacromial impingement resulting in
supraspinatus tendinosis and subdeltoid bursitis. He opined that the conditions were chronic. Dr.
Luchs also performed an age of injury analysis of the June 25, 2016, right hip MRI. He opined that
the MRI showed bilateral greater trochanteric bursitis, which is a chronic finding. On March 14,
2017, the Office of Judges reversed a claims administrator decision and held the claim
compensable for right shoulder sprain, right rib cage contusion, and right hip sprain.

        Ms. Shelton sought treatment from Justin Brewer, PA-C, and Christopher Courtney, D.O.,
on April 10, 2017. The treatment note indicates she was seen for right hip and groin pain. It was
noted that she underwent right hip labral repair and resection in December of 2016. Ms. Shelton
reported that she now has right groin pain and right leg pain. Mr. Brewer assessed right labral tear
and femoral acetabular impingement. Injections and physical therapy were recommended. Mr.
Brewer requested authorization for a right hip intra-articular injection and physical therapy for a
right acetabular labrum tear, right hip arthritis, right hip pain, and antalgic gait. On April 18, 2017,
Mr. Brewer and Dr. Courtney requested that right labrum tear, right hip arthritis, and right hip pain
be added as compensable diagnoses in the claim. A right hip intra-articular joint injection was
given on June 2, 2017, for the diagnoses of right hip pain, tear of the right acetabular labrum, and
right hip arthritis.

       In a June 26, 2017, Order, the Office of Judges reversed an April 7, 2017, claims
administrator’s decision which denied referral for intra-articular injection of the right hip and
remanded the claim pending a ruling on Dr. Courtney’s April 19, 2017, diagnosis update. It also
affirmed a denial of physical therapy because right rotator cuff tendonitis and bursitis are not
compensable conditions. The Office of Judges reversed an April 11, 2017, claims administrator’s
decision, which denied referral for physical therapy for the diagnoses of tear of the right acetabular
labrum, right hip arthritis, right hip pain, and antalgic gait, and remanded the case pending a ruling
on Dr. Courtney’s diagnosis update. Lastly, the Office of Judges affirmed the denial of the addition
of other lesions of the right shoulder, right hip pain, and right shoulder pain to the claim. The
claims administrator denied the addition of right hip arthritis to the claim on July 10, 2017.

         On July 28, 2017, Ms. Shelton returned to Dr. Courtney who noted that her pain was greatly
improved by a hip injection for right hip arthritis. He released her to return to work without
restrictions. Ms. Shelton completed a claim reopening application on August 16, 2017, requesting
temporary total disability benefits from August 16, 2017, through November 20, 2017. Dr.
Courtney listed the diagnoses as right hip injury, labral tear, psoas tendonitis, and greater
trochanteric bursitis. He recommended a right hip injection, psoas tendon injection, greater
trochanteric injection, and physical therapy. He stated that Ms. Shelton could return to work on
light duty with no standing, walking, or prolonged sitting. He indicated she has experienced a
progression of her right hip pain as well as weakness and tendinitis flare up.

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        The claims administrator denied a right psoas tendon injection and a greater trochanteric
bursa injection on September 18, 2017. On September 19, 2017, it denied reopening of the claim
for temporary total disability benefits. In a separate decision that day, the claims administrator also
denied physical therapy. A request for travel reimbursement was denied on October 2, 2017.

       An independent medical evaluation was performed by David Soulsby, M.D., on December
12, 2017. He diagnosed right shoulder impingement syndrome with partial thickness tear of the
supraspinatus tendon, right hip labral tear, and osteoarthritis in the right hip. He found Ms. Shelton
had reached maximum medical improvement for the compensable injuries and assessed 4% right
shoulder impairment.

       A February 16, 2018, treatment note by Mr. Brewer and Dr. Courtney indicates Ms. Shelton
was seen for right hip pain. She was having difficulty walking, standing, sitting, and driving. It
was noted that her right hip arthroscopy showed mild to moderate degenerative changes. Ms.
Shelton reported ongoing symptoms despite surgery and that she attempted to return to work but
was unsuccessful due to hip pain. The diagnoses were listed as right hip pain, right psoas
tendonitis, right hip arthritis, and right acetabular labrum tear. It was recommended that she
undergo physical therapy and receive hip joint injections as well as a trial return to work program.

        In a February 16, 2018, letter, Mr. Brewer stated that Ms. Shelton is able to return to work.
She has psoas tendonitis and right hip joint pain. He stated that her treatment had not been approved
and she was therefore not improving. Ms. Shelton could continue light duty work. Mr. Brewer
stated that he still recommends physical therapy, psoas tendon injections, and right hip injections.
The claims administrator denied ultrasound guided tendon injection of the right hip on February
21, 2018.

         The Office of Judges affirmed the July 10, 2017; September 19, 2017; and October 2, 2017,
claims administrator’s decisions in its March 16, 2018, Order. It determined that in a prior decision
dated March 14, 2017, it held that Ms. Shelton failed to submit sufficient evidence to show that
right labrum tear, right acetabular labrum tear, and right hip pain should be added to the claim.
The claim was held compensable for right shoulder sprain, right rib cage contusion, and right hip
sprain. It determined in the instant case that Ms. Shelton submitted no new evidence demonstrating
that she sustained injuries beyond the conditions already held compensable. Dr. Courtney stated
in a treatment note that she had preexisting osteoarthritis and that she was experiencing a flare up
of her preexisting right hip arthritis due to treatment for a noncompensable condition. The Office
of Judges held that right hip arthritis should not be added to the claim.

        Regarding travel reimbursement, the Office of Judges found that Ms. Shelton did not
submit any travel reimbursements. Additionally, Dr. Courtney, the physician whom she was
traveling to see, treated her for post hip arthroscopy for labral debridement and arthritis. Neither
condition is compensable in this claim, and reimbursement for travel expenses is therefore not
proper. Lastly, the Office of Judges determined that the claim should not be reopened for
temporary total disability benefits. Dr. Courtney requested benefits from August 16, 2017, through
November 20, 2017, for the conditions of labral tear, psoas tendonitis, and greater trochanteric
bursitis. None of these conditions are compensable. Further, Ms. Shelton underwent right hip labral
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debridement surgery. This constituted a subsequent intervening event, and any disability related
to the surgery is not compensable. The Office of Judges concluded that Ms. Shelton failed to show
proper cause for reopening her claim on a temporary total disability basis.

         In its May 22, 2018, Order, the Office of Judges affirmed the claims administrator’s
September 18, 2017, decision denying right psoas tendon injections and greater trochanteric bursa
injections; affirmed the claims administrator’s September 19, 2017, decision denying physical
therapy; and affirmed the February 21, 2018, decision denying ultrasound guided right hip tendon
injections. The Office of Judges determined that the claim was held compensable for right shoulder
sprain, right rib cage contusion, and right hip sprain. None of the requested treatments are aimed
at treating these compensable conditions. The Office of Judges found that the treatments were
requested for a right labrum tear, right hip pain, right hip psoas tendonitis, and other soft tissue
disorders related to the use/overuse of the shoulder. The Office of Judges noted that Ms. Shelton
also had preexisting arthrosis of the hip, which was denied as a compensable condition in the claim.
Because the requested medical treatment is aimed at treating noncompensable conditions, the
claims administrator’s denials of treatment were affirmed. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Orders in two
separate decisions dated September 28, 2016.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1 (2018), employees
who receive injuries in the course of and as a result of their covered employment are entitled to
benefits. For an injury to be compensable it must be a personal injury that was received in the
course of employment, and it must have resulted from that employment. Syl. Pt. 1, Barnett v. State
Workmen’s Compensation Commissioner, 153 W. Va. 796, 796, 172 S.E.2d 698, 699 (1970). Ms.
Shelton has failed to submit sufficient evidence to show that right hip arthritis developed in the
course of and resulting from her employment. Additionally, West Virginia Code § 23-4-3(a)(1)
(2005) provides that the claims administrator must provide medically related and reasonably
required sums for healthcare services, rehabilitation services, durable medical and other goods,
and other supplies. We find that the requested medical treatment and temporary total disability
benefits are aimed at treating noncompensable conditions and were also properly denied.

        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.




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ISSUED: November 15, 2019


CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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