                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

CECIL E. SCOTT,                                                                     FILED
                                                                                    May 7, 2018
Claimant Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0672 (BOR Appeal No. 2051767)
                   (Claim No. 2013028581)

MERCER COUNTY BOARD OF EDUCATION,
Employer Below, Respondent

                             MEMORANDUM DECISION
        Petitioner Cecil E. Scott, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Mercer County Board of Education, by
Jillian L. Moore, its attorney, filed a timely response.

       The issue on appeal is the addition of right cubital tunnel syndrome and right carpal
tunnel syndrome to the claim as well as authorization of an EMG. The claims administrator
denied an EMG of the right upper extremity on April 22, 2016. On July 28, 2016, it denied the
addition of right cubital tunnel syndrome and right carpal tunnel syndrome to the claim. The
Office of Judges affirmed the decisions in its December 28, 2016, Order. The Order was
affirmed by the Board of Review on June 23, 2017. 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 plumber, was injured in the course of his employment on April 22, 2013,
while lifting pipe dies. A treatment note by Steven O’Saile, M.D., that day indicates Mr. Scott
was lifting a pipe when it was dropped and he felt his shoulder jerk. Dr. O’Saile diagnosed right
shoulder traumatic rotator cuff tear with acromioclavicular joint arthritis. The claim was held
compensable for sprain/strain of the shoulder and upper arm and later for rotator cuff
sprain/strain and rotator cuff tear.
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        Mr. Scott underwent a right shoulder rotator cuff repair and a right shoulder subacromial
decompression performed by Dr. O’Saile on July 26, 2013. A right shoulder MRI taken on April
27, 2014, showed a full thickness supraspinatus and infraspinatus tendon tear with significant
retraction of the torn tendons. It also showed tendinopathy and a new superior labral tear.
Authorization for an arthroscopy of the right shoulder with labral tear and rotator cuff tear was
approved and Mr. Scott underwent a second surgery on June 2, 2014. The post-operative
diagnoses were right shoulder superior labral tear and right shoulder rotator cuff tear.

        James Dauphin, M.D., performed a physician review on September 10, 2014, in which
he recommended that a request for an EMG to evaluate the ulnar nerve in the elbow be denied.
He noted that the allowed diagnosis in the claim is for the shoulder. He found that the ulnar
nerve was not injured on the date of injury and the elbow is not part of the claim. Dr. Dauphin
further noted that Mr. Scott’s alleged onset of symptoms began many months after the date of
injury. The claims administrator denied a request for an EMG of the right upper extremity on
September 16, 2014.

        In an independent medical evaluation on September 23, 2014, Jerry Scott, M.D.,
concluded that Mr. Scott had reached maximum medical improvement for the compensable
injury. Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), he assessed 5% impairment. He then apportioned 3% to preexisting
conditions and 2% to the compensable injury. In a report dated December 2, 2014, Dr. Scott
stated that he had reviewed additional records and concluded that the request for an EMG/nerve
conduction study of the right upper extremity was not causally related to nor necessary treatment
for the compensable injury.

       In a July 14, 2015, independent medical evaluation, Bruce Guberman, M.D., found that
Mr. Scott had reached maximum medical improvement. He found signs and symptoms consistent
with right ulnar neuropathy of the elbow that were attributable to the compensable injury. Dr.
Guberman recommended an EMG/nerve conduction study of the right upper extremity. He
assessed 7% impairment.

        In a February 29, 2016, treatment note, Gary McCarthy, M.D., diagnosed Mr. Scott with
right traumatic rupture of the rotator cuff, right cubital tunnel syndrome, and right carpal tunnel
syndrome. A right shoulder x-ray taken that day showed narrowing of the subacromial space and
mild osteoarthritic changes in the acromioclavicular joint. Dr. McCarthy referred him for an
EMG. The claims administrator denied the request for an EMG/nerve conduction study of the
right upper extremity on March 25, 2016.

       A right shoulder MRI taken on April 13, 2016, showed supraspinatus and infraspinatus
tears with partial retraction, fatty atrophic changes of the muscles, subscapularis tendinopathy
with probable partial tear, and visible longhead of the biceps tendon. There were also moderate
acromioclavicular degenerative changes. In a treatment note a few weeks later, Dr. Scott
diagnosed laceration of the muscles and tendons of the right rotator cuff. Dr. McCarthy then

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completed a diagnosis update on May 17, 2016, in which he requested that right cubital tunnel
syndrome and right carpal tunnel syndrome be added to the claim.

        Syam Stoll, M.D., performed a physician review on June 18, 2016, in which he
determined that the diagnosis of traumatic rupture of the rotator cuff should not be added to the
claim as it was not medically supported. He also found that the diagnoses of carpal tunnel
syndrome and cubital tunnel syndrome were not causally related to the compensable injury. He
stated that Mr. Scott sustained an injury to his shoulder and the elbow was not involved. He also
noted that the onset of symptoms for carpal and cubital tunnel syndrome was sixteen months
after the compensable injury.

       In an August 1, 2016, independent medical evaluation, Mark Baratz, M.D., diagnosed
massive right rotator cuff tear and right cubital tunnel syndrome. He opined that the rotator cuff
tear was related to the compensable injury but found no relationship between Mr. Scott’s cubital
tunnel syndrome and the compensable injury. Dr. Baratz further stated that he saw no evidence
of carpal tunnel syndrome.

        The claims administrator denied a request for an EMG of the right upper extremity on
April 22, 2016. On July 28, 2016, it denied the addition of right cubital tunnel syndrome and
right carpal tunnel syndrome to the claim. The Office of Judges affirmed the decisions in its
December 28, 2016, Order. It found that Mr. Scott was injured while lifting pipes off of a truck.
He slipped off the truck and his arm and shoulder were jerked. He was initially seen by Dr.
O’Saile and neither the wrist nor elbow were mentioned at that time. Elbow and wrist symptoms
did not appear until July of 2014, over a year after the compensable injury occurred. The Office
of Judges found that the etiology of Mr. Scott’s alleged cubital and carpal tunnel syndrome has
been addressed by Drs. Dauphin, Scott, Stoll, and Baratz. None of those physicians found a
causal connection between the compensable injury and the complaints of carpal and cubital
tunnel syndrome.

         The Office of Judges further determined that the jerking/pulling injury described on the
initial report of injury is not the type of injury which would produce stress on either the elbow or
wrist. Further, Mr. Scott’s primary care provider has not provided a detailed explanation to
explain how the compensable injury caused carpal or cubital tunnel syndrome. The Office of
Judges also found that the diagnoses of cubital and carpal tunnel syndrome have not even been
confirmed by electrodiagnostic testing, as the request for such was denied by the claims
administrator. The Office of Judges determined that Mr. Scott did not testify concerning the
compensable injury or why he believes his elbow and wrist were injured in the accident. His
treating physician has not explained in any detail why he believes the elbow and wrist conditions
are related to the compensable injury. However, the record contains opinions from four other
physicians who examined Mr. Scott and determined that cubital and carpal tunnel syndrome are
not related to the compensable injury. The Office of Judges therefore concluded that a
preponderance of the evidence shows that the conditions are not compensable and that the
diagnosis testing for them was properly denied. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its Order on June 23, 2017.

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        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Scott did not report symptoms of either carpal or cubital
tunnel syndrome until well over a year after the compensable injury occurred. No detailed
explanation has been given relating the conditions to the compensable injury; however, several
physicians of record reliably found that the conditions were not the result of the compensable
injury. Therefore, the conditions were properly denied as was the EMG which was necessitated
by the non-compensable conditions.

        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.

ISSUED: May 7, 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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