                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDELL C. MORRIS,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0246 (BOR Appeal No. 2049971)
                   (Claim No. 2014004637)

MONONGAHELA VALLEY ASSOCIATION OF HEALTH CENTERS,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Randell C. Morris, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. Monongahela Valley Association of Health Centers, by Steven
K. Wellman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 24, 2015, in
which the Board affirmed an October 16, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 6, 2013,
decision closing the claim for temporary total disability benefits. 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. Morris, a maintenance supervisor, injured his shoulders in the course of his
employment on July 30, 2013, while lifting a rack of charts. The employee’s report of injury lists
the injury as an occupational disease caused by chronic overuse, and the workers’ compensation
reporting worksheet lists the diagnosis as shoulder sprain. Mr. Morris was treated by Himanshu
Paliwal, M.D., for the compensable injury. On July 30, 2013, Dr. Paliwal stated that Mr. Morris
reported bilateral shoulder pain for the past two years that had progressively worsened, though
he stated that he did not recall any specific traumatic event. He injured his back two years prior
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and began noticing left shoulder stiffness following the injury. Right shoulder stiffness
eventually developed as well. Mr. Morris was diagnosed with rotator cuff tendonitis. Dr. Paliwal
opined that the condition is likely due to his job duties which require overhead and heavy lifting.
Mr. Morris was allowed to continue work with the avoidance of overhead activity.

         Sushil Sethi, M.D., performed an independent medical evaluation on October 18, 2013, in
which he noted that Mr. Morris was working forty hours a week. Dr. Sethi found that Mr. Morris
had seen Roger Kritzer, D.C., off and on for some time. Dr. Sethi opined that he has been
stabilized for the compensable injury and determined that he was working full time without
restrictions. He diagnosed bilateral shoulder sprains due to overuse and found that Mr. Morris
had reached maximum medical improvement. He stated that he could continue to work. The
claims administrator then held the claim compensable for bilateral shoulder sprain/strain. It was
noted that Mr. Morris was not entitled to temporary total disability benefits because he missed
three or less days of work.

         Mr. Morris was also treated by Chad Micucci, M.D., from November of 2013 through
April of 2014. Dr. Micucci performed x-rays of Mr. Morris’s shoulders and diagnosed bilateral
shoulder rotator cuff tendinopathy, bursitis, impingement, and right elbow bicipital tendinopathy.
An MRI was done of the right shoulder which showed a full thickness tear of the supraspinatus
with proximal tendon retraction, partial tearing of the subscapularis, moderate acromioclavicular
joint hypertrophy, and mild distal clavicular edema. A left shoulder MRI showed a complete
rotator cuff tear and atrophy. Mr. Morris underwent left shoulder surgery. It was noted that it
would likely take six months to recover and that he could do sedentary work but could not use
the left arm to lift. The claims administrator denied the request for surgery because the evidence
shows that the rotator cuff tears are chronic and not the result of the compensable injury.

        On December 6, 2013, the claims administrator closed the claim for temporary total
disability benefits because it did not receive evidence that Mr. Morris was disabled for more than
three days. The Office of Judges affirmed the decision in its October 16, 2014, Order. It stated
that the compensable condition in the claim is bilateral shoulder sprain/strain. The additional
diagnoses of bilateral rotator cuff syndrome, bilateral bicipital tendinopathy, and shoulder pain
were denied, and Mr. Morris did not protest the denial. The Office of Judges found that Dr. Sethi
concluded in his independent medical evaluation that Mr. Morris was at maximum medical
improvement and could return to full duty work with no restrictions. The Office of Judges also
stated that the Order dated November 7, 2013, specifically noted that he had not missed more
than three consecutive days of work. Mr. Morris did not protest that decision. Lastly, the Office
of Judges stated that it agreed that the evidence shows that Mr. Morris’s period of disability was
for conditions and surgery which have already been denied in the claim. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on February 24, 2015.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Pursuant to West Virginia Code § 23-4-5 (2003), a claimant is not granted
benefits if the period of disability is less than three days. Mr. Morris failed to submit any
evidence showing that he missed more than three days as a result of the compensable bilateral
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shoulder sprains/strains. Further, West Virginia Code § 23-4-7a (2005) provides that temporary
total disability benefits are suspended once a claimant has reached maximum medical
improvement, has been released to return to work, or has actually returned to work. The evidence
shows that Mr. Morris’s treating physician, Dr. Paliwal, stated that Mr. Morris could continue to
work. Also, Dr. Sethi found Mr. Morris to be at maximum medical improvement for the
compensable injury in his independent medical evaluation. The record further shows that Mr.
Morris’s surgery and resulting disability are not the result of the work-related injury and he
therefore is not entitled to temporary total disability benefits for the conditions or resulting
surgery.

        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: February 4, 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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