                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
CECIL E. SCOTT,                                                                   February 23, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0862 (BOR Appeal No. 2051880)
                    (Claim No. 2013028581)

MERCER COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


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

       The issue on appeal is whether a third right shoulder arthroscopic surgery is reasonable
and necessary medical treatment for the compensable injury. The claims administrator denied the
request for the surgery on November 9, 2016. The Office of Judges affirmed the claims
administrator in its March 17, 2017, Order. The Order was affirmed by the Board of Review on
August 28, 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, injured his right shoulder on April 22, 2013, when he was
unloading heavy pipe from a truck and the pipe fell, jerking his arm downward. A right shoulder
MRI performed on April 27, 2013, revealed a large full-thickness tear of the supraspinatus
tendon with degenerative arthritic change impinging on the subacromial space significantly from
the acromioclavicular joint, inflammatory change of the subscapularis tendon, intraosseous
ganglion cyst at the insertion of the tendon into the proximal humerus, and mild degenerative
changes of the glenohumeral articular cartilage.


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        Mr. Scott sought treatment with Steven O’Saile, M.D., who performed a right shoulder
open rotator cuff repair and right shoulder subacromial decompression on July 26, 2013. The
preoperative and postoperative diagnoses were large, retracted, and complete right shoulder
rotator cuff tear and right shoulder acromioclavicular arthritis with impingement.

        On February 11, 2014, Jerry Scott, M.D., performed an independent medical evaluation.
He noted Mr. Scott complained of tenderness in the posterior aspect of the right shoulder. There
was no significant tenderness in the acromioclavicular region. Mr. Scott had restricted range of
motion. Dr. Scott opined that Mr. Scott had reached maximum medical improvement. Dr. Scott
did not recommend any additional medical treatment as any further treatment would be directed
at the severe pre-existing degenerative changes.

        Mr. Scott re-injured his right shoulder at work on April 3, 2014, when he was using a
wrench and felt a pop in the shoulder. A right shoulder MRI and arthrogram performed on April
17, 2014, showed full thickness supraspinatus and infraspinatus tendon tears with significant
retraction of the torn tendons, subscapularis tendinopathy, and a new superior labral tear. On
June 2, 2014, Mr. Scott underwent a second surgery which included a right shoulder arthroscopy
with extensive debridement of the right shoulder including the labrum, biceps stump with rotator
cuff, and supraspinatus and infraspinatus tendons. The preoperative diagnoses were right
shoulder labral tear and right shoulder rotator cuff tear including supraspinatus and infraspinatus
tendons with retraction. The postoperative diagnoses were right shoulder labral tear and right
shoulder rotator cuff tear including supraspinatus and infraspinatus tendons with retraction, and
rupture of the long head of the biceps tendon.

        Dr. Scott performed a second independent medical evaluation of Mr. Scott on September
23, 2014. Dr. Scott opined that Mr. Scott had a history of preexisting degenerative disease of the
right shoulder as well as evidence of rotator cuff tear with significant contribution from his
degenerative changes. In his opinion, Mr. Scott had reached maximum medical improvement and
there was no need for additional medical treatment.

        Bruce Guberman, M.D., performed an independent medical evaluation on July 14, 2015.
His impression was chronic post-traumatic strain of the right shoulder; status post right shoulder
rotator cuff tear with acromioclavicular arthritis and impingement with right shoulder open
rotator cuff repair and right shoulder subacromial decompression on July 26, 2013; and recurrent
full thickness tears of the infraspinatus and supraspinatus muscles with superior labral tear and
rupture of the long head biceps tendon with surgery on June 2, 2014, for extensive debridement
of the right shoulder including a labrum biceps stump, rotator cuff tendon, supraspinatus and
infraspinatus. In his opinion, Mr. Scott had reached maximum medical improvement.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation on
December 15, 2015. He diagnosed a rotator cuff tear of the right shoulder that was treated
surgically. He opined that Mr. Scott had reached maximum medical improvement. He noted Mr.
Scott continued to have symptoms, most of which were related to the noncompensable
degenerative conditions.

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        Mr. Scott was seen in consultation by Gary McCarthy, M.D., an orthopedic surgeon, on
February 29, 2016. Mr. Scott reported weakness, numbness, and tingling in his right shoulder.
The prior surgeries and physical therapy had not helped. He had returned to work and was
working full duty. Right shoulder x-rays showed evidence of mild osteoarthritic changes. Dr.
McCarthy diagnosed right traumatic rupture of the rotator cuff, cubital tunnel syndrome, and
right carpal tunnel syndrome and recommended a right shoulder MRI, which was performed on
April 13, 2016. It revealed supraspinatus and infraspinatus tears with partial retraction and fatty
atrophic changes of the muscle, subscapularis tendinopathy with probable partial tear, visible
longhead of the biceps tendon within the bicipital groove, and moderate acromioclavicular
degenerative changes. On April 27, 2016, Dr. McCarthy diagnosed traumatic rupture of the
rotator cuff with laceration of the muscles and tendons of the rotator cuff of the right shoulder.
He recommended a shoulder arthroscopy with rotator cuff repair.

       Mark Baratz, M.D, an orthopedic surgeon, performed an independent medical evaluation
on August 1, 2016. Dr. Baratz diagnosed a massive right rotator cuff tear and right cubital tunnel
syndrome. He opined that Mr. Scott had a long-standing history of right rotator cuff tendinopathy
and possibly a rotator cuff tear prior to the work injury. However, he had a work-related injury
that made the condition more severe and precipitated the rotator cuff repair. He opined that Mr.
Scott was a candidate for a latissimus transfer, which is a procedure in which the latissimus
muscle is transferred from the arm to the head of the humerus. The purpose of the procedure is to
reduce shoulder pain and improve shoulder weakness. Dr. Baratz prepared a supplemental report
on September 21, 2016, in which he opined that another attempt at an arthroscopic repair was
unreasonable. He stated that “after two prior attempts at repair with a massive retracted tear the
chances of finding tissue that can be returned to the footprint of the humerus and heal is
exceptionally low”.

        Rebecca Thaxton, M.D., performed a medical records review on September 26, 2016.
She did not recommend authorizing the arthroscopic surgery. In her opinion, Mr. Scott had
reached maximum medical improvement. He had pre-injury symptomatic shoulder disease and
arthroscopies. Mr. Scott had been evaluated by Drs. Mukkamala, Scott, and Guberman all of
whom found Mr. Scott had reached maximum medical improvement. Mr. Scott had symptoms in
the right shoulder dating back to 2005. He was diagnosed with osteoarthrosis of the right
shoulder on January 3, 2013, less than three months prior to the work injury and arthroscopic
surgery had been recommended for the right shoulder years before the injury.

        On November 9, 2016, the claims administrator denied a request for right shoulder
arthroscopy with rotator cuff repair. The Office of Judges affirmed the claim administrator’s
denial in its March 17, 2017, Order. It noted Mr. Scott had previously undergone two
arthroscopic surgeries which were apparently not successful. The Office of Judges also gave
more credence to the opinions of the orthopedic surgeons that had evaluated Mr. Scott than the
opinions of the non-orthopedic surgeons who evaluated him. It found the opinion of Dr. Baratz
regarding the reasonableness and necessity of the requested surgery to be the most reliable. The
Office of Judges found that Dr. Baratz opined that the third arthroscopic repair was not
reasonable and instead recommended a latissimus transfer. It also found that the concerns of Dr.
Baratz should have been addressed by the recommending doctor in order to provide clarification
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on why the surgery was reasonable and necessary. The Office of Judges found that three
arthroscopic procedures appeared to be unusual. It determined the concerns of Dr. Baratz were
unrebutted and the majority of the medical evidence did not address the request for the
arthroscopy. The Board of Review adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on August 28, 2017.

       After review, we agree with the Office of Judges as affirmed by the Board of Review. Dr.
O’Saile performed two arthroscopic surgeries. Dr. McCarthy recommended the surgery the
second time he saw Mr. Scott. He did not indicate why he believed the surgery would be
successful the third time. Dr. Baratz explained why the third arthroscopic procedure was not
recommended, why he did not believe it would be successful, and provided an alternative for that
surgery. The Board of Review did not err in relying on Dr. Baratz’s opinion.

        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 23, 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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