                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

STEVEN W. SCOTT,                                                                 FILED
Claimant Below, Petitioner                                                   November 2, 2018
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
vs.)   No. 18-0392 (BOR Appeal No. 2052249)                                       OF WEST VIRGINIA

                   (Claim No. 2016028699)

WQ WATTERS COMPANY,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Steven W. Scott, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. WQ Watters Company, by
Timothy E. Huffman, its attorney, filed a timely response.

        The issues on appeal are additional compensable conditions, temporary total disability
benefits, and medical benefits. The claims administrator denied the addition of complete rotator
cuff tear of the left shoulder and strain of muscle, fascia, and tendon of the upper left arm to the
claim on July 28, 2016. In a separate decision the same day, the claims administrator denied an
MRI and physical therapy for the left shoulder. On August 18, 2016, the claims administrator
closed the claim for temporary total disability benefits, and on September 8, 2016, it denied
physical therapy for the right thigh. The Office of Judges affirmed the decisions in its September
19, 2017, Order. The Order was affirmed by the Board of Review on March 27, 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.

       Mr. Scott, a union painter, was injured in the course of his employment on May 4, 2016,
when he slipped and fell about five feet to the ground. Mr. Scott had a wellness exam on May 10,
2016, at Doctor’s ImmediCare and reported right leg pain for the past five to seven days. He
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stated that he slipped on a roof at work and fell into a hole. He was diagnosed with a traumatic
hematoma and ordered to elevate his leg. He returned on May 12, 2016, for follow up. It was
noted the left shoulder was not swollen but that Mr. Scott experienced pain with movement. He
was diagnosed with pain in the leg and sprain of the left shoulder. The claims administrator held
the claim compensable for upper right leg contusion on May 18, 2016.

       On May 19, 2016, John Pierson, M.D., treated Mr. Scott for his right leg and left
shoulder. Dr. Pierson noted that Mr. Scott underwent an MRI the previous April for the left
shoulder. It showed a possible small tear which was conservatively treated. He noted that Mr.
Scott had suffered a recent work injury where he fell through a roof and reinjured his shoulder as
well as bruised his thigh. Dr. Pierson diagnosed complete rotator cuff tear or rupture of the left
shoulder, not specified as traumatic; strain of the muscle, fascia, and tendon of the biceps; and
contusion of the right thigh. Physical therapy was recommended for the shoulder.

        Mr. Scott had treated with Dr. Pierson, and other physicians, for the left shoulder prior to
the compensable injury. In May of 1996, he was treated at Bone & Joint Surgeons for the left
shoulder, among other things. An April 1, 2016, left shoulder MRI revealed a tendon tear,
probably full thickness. Dr. Pierson saw Mr. Scott a few days later on April 6, 2016, for left
shoulder pain. At that time, Mr. Scott reported a prior left shoulder injury in 2008 and that he had
experienced left shoulder pain off and on since. The pain began most recently two months prior.
The left shoulder pain was constant. Dr. Pierson examined Mr. Scott and diagnosed complete
rotator cuff tear or rupture of the shoulder. He stated that if conservative treatment failed, surgery
should be considered. Mr. Scott then attempted physical therapy and an April 11, 2016, treatment
note from Elk Valley Physical Therapy noted that he was being treated for a complete rotator
cuff tear, impingement syndrome of the left shoulder, and pain in the left shoulder. He was to
attend therapy for eight weeks. It was noted that his treating physician wanted to try physical
therapy before surgery.

       In a June 6, 2016, physician review, Syam Stoll, M.D., was asked to perform a physician
review to determine if the left shoulder injury resulted from the compensable work-related fall.
Dr. Stoll opined that the treatment for the left shoulder was not related to the compensable injury
and recommended that treatment for the shoulder be denied. Dr. Stoll’s review of the record
suggested that the compensable injury was to the right leg and did not involve the left shoulder.
Further, Mr. Scott had a preexisting left shoulder injury for which he was being treated prior to
the compensable injury.

        Mr. Scott returned to Dr. Pierson on June 9, 2016, and reported that he continued to have
pain and weakness in the left shoulder which was noted as a recent re-injury. Dr. Pierson stated
that Mr. Scott had a small tear back in April but had sustained a new injury when he fell through
the roof at work. Dr. Pierson again diagnosed complete rotator cuff tear or rupture of the left
shoulder, not specified as traumatic; strain of muscle, fascia, and tendon of the shoulder and
upper arm; impingement syndrome of the left shoulder, and left thigh contusion. Dr. Pierson
stated that Mr. Scott may have worsened the preexisting rotator cuff tear with the compensable
injury. He recommended an MRI. The MRI was performed on June 18, 2016, and showed partial
tears and/or tendonitis, fraying portions of the labrum and fluid adjacent to the biceps tendon. T.
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Zekan, M.D., radiologist, commented that the MRI was similar to the preinjury MRI. On June
23, 2016, Dr. Pierson noted that he reviewed the MRI and found that the partial tear had
progressed to a full tear. He recommended a left shoulder arthroscopy, subacromial
decompression, and labral debridement. Mr. Scott also reported right thigh pain with activity at
that time.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation on July 8,
2016, in which he noted that the only compensable condition in the claim was a thigh contusion.
He concluded that Mr. Scott had reached maximum medical improvement. He opined that the
right thigh contusion had fully healed and no further treatment was necessary. The claims
administrator suspended temporary total disability benefits on July 18, 2016, based on Dr.
Mukkamala’s evaluation.

        On July 21, 2016, Dr. Pierson noted that Mr. Scott reported that his left shoulder pain and
weakness was not improving. He also reported that his right thigh pain was still present and
worse with activity. The diagnosis remained complete rotator cuff tear; strain of muscle, fascia,
and tendon of the shoulder and upper arm; and right thigh contusion. Dr. Pierson noted that
MRIs were performed before and after the injury and show a worsening of the rotator cuff from a
partial tear to a full tear. He opined that the left shoulder condition was aggravated by the
compensable injury and recommended surgery, which was performed on September 19, 2016.
The post-operative diagnoses were left shoulder full thickness rotator cuff tear, impingement
syndrome of the left shoulder, and type 1 superior labral tear.

        Mr. Scott testified in a deposition on December 8, 2016, that on the day of the injury he
slipped on a wet painted board and fell about five feet, catching himself with his right thigh and
left shoulder. He finished his shift that day, Thursday, and his shift the following day. He stated
that bruising appeared on his shoulder on Sunday. By Monday after his shift, his leg was swollen
and he could not walk on it. He sought treatment on Tuesday. At that time, his leg hurt more than
his shoulder, so his shoulder was not mentioned. When he sought treatment a second time, he
reported shoulder pain. He stated that prior to the injury, he had full range of motion in the left
shoulder. He admitted to slipping on ice in 2008 and injuring his left shoulder.

        In a March 13, 2017, letter, Dr. Pierson stated that Mr. Scott injured his right thigh and
left shoulder at work. He had treated Mr. Scott prior to the compensable injury and an MRI was
performed which showed a partial thickness tear of the rotator cuff. He opined that the
compensable injury aggravated the shoulder pain and a second MRI showed a full thickness tear
of the rotator cuff. Dr. Pierson further opined that Mr. Scott sustained a discrete new injury as a
result of the compensable injury. Prior to the compensable injury, he was able to work but has
been unable to return since the compensable injury occurred.

        Dr. Mukkamala performed a second independent medical evaluation on May 12, 2017.
He reviewed the medical records and examined Mr. Scott. Dr. Mukkamala found that Mr. Scott
suffered a contusion to the right thigh as a result of the compensable injury. He concluded that he
had reached maximum medical improvement. Dr. Mukkamala opined that the left shoulder was
not injured in the work-related fall.
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         In two separate decisions dated July 28, 2016, the claims administrator denied the
addition of complete rotator cuff tear of the left shoulder and strain of muscle, fascia, and tendon
of the upper left arm to the claim and denied authorization of an MRI and physical therapy for
the left shoulder. On August 18, 2016, it closed the claim for temporary total disability benefits.
Finally, on September 8, 2016, the claims administrator denied a request for physical therapy for
the right thigh. The Office of Judges affirmed the decisions in its September 19, 2017, Order.

        The Office of Judges found that, prior to the compensable injury, Mr. Scott underwent a
left shoulder MRI which showed a full thickness tear. A few days later, Dr. Pierson saw Mr.
Scott and also diagnosed a complete rotator cuff tear. After the compensable injury, Mr. Scott
underwent a second MRI which the radiologist commented appeared to be similar to the previous
MRI. Dr. Pierson then requested that complete rotator tear of the left shoulder be added to the
claim. He opined that the post-injury MRI showed a significant change in the rotator cuff. The
Office of Judges determined that Dr. Pierson’s opinion was not well supported by the
radiologist’s interpretation of the MRIs. Further, Dr. Pierson diagnosed a complete rotator cuff
tear prior to the compensable injury. The Office of Judges also found that Drs. Stoll and
Mukkamala both opined that Mr. Scott did not injure his left shoulder as a result of the
compensable injury. They noted that the initial treatment note did not mention the left shoulder.

        The Office of Judges concluded that Dr. Pierson’s opinion, as an orthopedic surgeon, was
superior to the opinions of Drs. Mukkamala and Stoll, who are not orthopedic surgeons.
However, given the MRI evidence, the preinjury diagnosis of a complete rotator cuff tear, and
the fact that Mr. Scott did not initially report a left shoulder injury, the Office of Judges found
that Dr. Pierson’s opinion was not reliable in this case. Because the addition of complete rotator
cuff tear of the left shoulder and strain of muscle, fascia, and tendon of the upper left arm was
denied, the Office of Judges concluded that treatment for the conditions was also properly
denied. The Office of Judges found no evidence that Mr. Scott remained temporarily and totally
disabled as a result of the compensable right thigh contusion. It also concluded that the need for
further physical therapy for the right thigh was not well explained, and Mr. Scott has been found
to have reached maximum medical improvement for the compensable injury. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on March 27, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence of record clearly shows that the left shoulder
complete rotator cuff tear preexisted the compensable injury and that the left shoulder was not
involved in the mechanism of injury. Treatment for such was therefore properly denied. Further,
Mr. Scott was found to have reached maximum medical improvement for his compensable right
thigh contusion and there is no indication for physical therapy.

        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: November 2, 2018


CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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