                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                May 25, 2016
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JAMES LEDBETTER,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0721 (BOR Appeal No. 2050151)
                   (Claim No. 2012038654)

TRITON CONSTRUCTION, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner James Ledbetter, by George Zivkovich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Triton Construction, Inc., by
Timothy Huffman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 1, 2015, in which
the Board affirmed a December 23, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 31, 2013; January 23,
2014; and May 16, 2014, decisions which denied the addition of shoulder sprain/strain, labral
tear of the shoulder, and ganglion cyst to the claim and also denied authorization of a right
shoulder arthroscopy. 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. Ledbetter, a laborer, was injured in the course of his employment on June 14, 2012.
The report of injury states that he was placing a ladder on a bank, slipped, and the ladder fell on
him injuring his right wrist and arm. He sought treatment that day at Camden Clark Memorial
Center and was diagnosed with a contusion of the right forearm. He followed up on June 18,
2012, and it was noted that he had swelling, tenderness, and limited range of motion in his right
arm. He reported increased pain in his right wrist that extended into his wrist. A right shoulder
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MRI taken on June 26, 2012, revealed thinning of the distal rotator cuff tendon suggesting an
incomplete partial articular surface tear, cystic changes in the humeral head, and findings
consistent with a large labral cyst.

        Mr. Ledbetter was treated for the compensable injury by Jessica Wooton, FNP-BC. A
treatment note on June 25, 2012, indicates he reported neck pain and stiffness as well as right
shoulder pain, swelling, stiffness, and weakness. Ms. Wooton diagnosed shoulder contusion and
shoulder sprain. On July 19, 2012, Mr. Ledbetter reported that his pain was getting worse. Ms.
Wooten diagnosed sprained right supraspinatus tendon, sprained right superior glenoid labrum
lesion, cervicalgia, and contusion of the shoulder. Physical therapy was recommended. On
September 6, 2012, it was noted that Mr. Ledbetter had not started physical therapy and
requested additional time off of work. Ms. Wooten stated he had been treated with NSAIDS, oral
steroids, and joint injections with no reported improvement. She opined that his current pain
complaints do not correlate with the physical findings. However, on July 19, 2012, she requested
the addition of sprained right supraspinatus tendon, sprained right superior glenoid labrum
lesion, and cervicalgia to the claim.

        Mr. Ledbetter was referred to George Tokodi, D.O., who diagnosed severe right forearm
pain on July 11, 2012. Dr. Tokodi reviewed the MRI and opined that while the rotator cuff injury
could have possibly happened at work, the cystic structure has been present for quite some time.
On August 1, 2012, Rebecca Thaxton, M.D., performed a record review in which she opined that
the shoulder and neck diagnoses were not related to the compensable injury. She stated that the
rotator cuff tear could have been caused by the compensable injury; however, there were
degenerative changes and the health records indicate the shoulder was already an active problem.
She recommended that Mr. Ledbetter see Dr. Todoki for his opinion on causality. She also
recommended authorization of a right arm EMG and a diagnostic shoulder injection.

       Sushil Sethi, M.D., performed an independent medical evaluation on October 23, 2012, in
which he diagnosed a right forearm contusion. He noted non-occupational, aging process
degenerative disease with a large cyst formation in the head of the humerous and a degenerative
cyst in the labrum suggestive of a chronic degenerative process. Dr. Sethi found that Mr.
Ledbetter had reached maximum medical improvement and assessed 1% impairment.

       Mr. Ledbetter sought treatment from George Bal, M.D., for his right shoulder condition.
On December 20, 2012, Dr. Bal noted that Mr. Ledbetter reported continuous, severe right
shoulder pain that had been present since the work-related injury. The pain radiated down the
arm to the forearm. Dr. Bal diagnosed right labral tear with paralabral cyst. He opined that the
tear caused the cyst and recommended a right shoulder arthroscopy. Dr. Bal stated that it is
within reasonable medical possibility that the work-related injury caused the labral tear, but he
could not say for certain as he had only examined Mr. Ledbetter once. Dr. Bal performed a right
shoulder arthroscopy on January 11, 2013. In a March 21, 2013, attending physician’s report, Dr.
Bal requested the addition of labral tear of the shoulder and paralabral cyst to the claim.

      The claims administrator denied the addition of shoulder sprain/strain to the claim on
May 31, 2013. On January 23, 2014, it denied the addition of labral tear of the shoulder and
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ganglion cyst to the claim. The claims administrator denied authorization of a right shoulder
arthroscopy on May 16, 2014.

        On December 5, 2013, Dr. Thaxton opined in a record review that ganglion cyst should
not be added to the claim because the diagnosis was degenerative in nature. On April 2, 2014,
she opined in another record review that sprain/strain of the shoulder/arm should not be added to
the claim because the original mechanism of injury did not involve the right shoulder. She noted
that Mr. Ledbetter suffered from degenerative conditions which have been documented in prior
medical records.

        In a June 24, 2014, independent medical evaluation, Prasadarao Mukkamala, M.D.,
diagnosed a resolved right forearm contusion and opined that denial of the addition of right
shoulder sprain/strain, superior glenoid labrum lesion, and ganglion cyst to the claim was proper.
He concluded Mr. Ledbetter had reached maximum medical improvement and suffered from no
permanent impairment. In an August 18, 2014, record review, Dr. Mukkamala stated that his
diagnosis remained unchanged. He opined that the claims administrator acted appropriately in
denying authorization for the right shoulder surgery. He noted that when Mr. Ledbetter presented
to the emergency room on June 14, 2012, an examination of the right shoulder was normal with
no tenderness or range of motion difficulties, while examination of the forearm and elbow
revealed tenderness. When Mr. Ledbetter was rechecked four days later, he again had a normal
right shoulder exam with no tenderness and full range of motion. Dr. Mukkamala therefore
concluded that he clearly did not injure his shoulder on June 14, 2012.

        The Office of Judges affirmed the claims administrator’s denial of the addition of
shoulder sprain/strain, labral tear of the shoulder, and ganglion cyst to the claim as well as
authorization of a right shoulder arthroscopy on December 23, 2014. It found that the claim was
held compensable for elbow/forearm sprain and a forearm contusion. The report of injury made
no mention of a right shoulder injury, nor do emergency records from Camden Clark Memorial
Center on the day of the compensable injury or four days later. Range of motion in the shoulder
was normal at that time, and there was no tenderness or swelling. The Office of Judges found
that Dr. Tokodi questioned the amount of pain Mr. Ledbetter reported in his forearm. The Office
of Judges also noted that Dr. Bal, who authored the diagnosis update, listed a different
mechanism of injury than originally reported. Further, Dr. Bal’s operative note lists the injury as
a Type IV slap lesion. In her physician review, Dr. Thaxton explained that the most common
slap lesion, and the most highly associated with trauma, was a Type II lesion. The Office of
Judges therefore ultimately concluded that the denial of the addition of right shoulder
sprain/strain to the claim was proper as the evidence failed to establish a causal connection
between the compensable injury and the right shoulder sprain. The Office of Judges noted that its
determination was also supported by Dr. Mukkamala’s independent medical evaluation and
record review

       The Office of Judges also determined that the preponderance of the evidence does not
support the addition of superior labral tear or paralabral cyst to the claim. It stated that Mr.
Ledbetter was found to be at maximum medical improvement by Dr. Sethi in his October of
2012 independent medical evaluation as well as by Dr. Mukkamala. The Office of Judges
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determined that Dr. Sethi specifically addressed the cystic changes in his evaluation and
determined that they were reflective of a chronic degenerative process. Dr. Mukkamala also
opined that the condition was unrelated to the compensable injury. The Office of Judges further
found that Dr. Tokodi opined on July 1, 2012, shortly after the compensable injury occurred, that
the cystic structure had been present for a while. Because the right shoulder is not a compensable
condition in the claim, the Office of Judges also affirmed the denial of authorization of a right
shoulder arthroscopy. It determined the surgery was not medically necessary or reasonably
required to treat the compensable injury.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidence indicates that Mr. Ledbetter injured his right forearm and
wrist when a ladder fell on him on June 14, 2012. Treatment notes show that his right shoulder
was normal on the day of the injury and four days later during a follow-up. Further, a right
shoulder MRI, as well as various treatment notes, indicate that his condition is the result of a pre­
existing degenerative process. Because the right shoulder is not a compensable component of the
claim, treatment for such was 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.

ISSUED: May 25, 2016

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




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