                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              February 3, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SANDRA J. ADAMS,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0385 (BOR Appeal Nos. 2048952 & 2048986)
                   (Claim No. 2013023262)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Sandra J. Adams, by Jonathan C. Bowman, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Wheeling Hospital, Inc., by
Jennifer B. Hagedorn, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated March 24, 2014, in
which the Board affirmed November 13, 2013, and October 31, 2013, Orders of the Workers’
Compensation Office of Judges. In its November 13, 2013, Order, the Office of Judges affirmed
the claims administrator’s June 4, 2013, decision denying reopening of the claim for temporary
total disability benefits. In its October 31, 2013, Order, the Office of Judges affirmed the claims
administrator’s June 25, 2013, decision denying authorization for right rotator cuff repair. 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.

       Ms. Adams worked as a cleaning attendant for Wheeling Hospital, Inc. On February 27,
2013, she injured her right shoulder when she tripped on a cart and fell. On that day, Ms. Adams
was treated at Wheeling Hospital for right shoulder pain and rotator cuff strain, and she was
placed on modified duty with no heavy lifting. The following day, Ms. Adams was examined by
Ross A. Tennant, F.N.P. He released Ms. Adams to return to work without restrictions because
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she indicated that her right shoulder discomfort had significantly decreased after she applied heat
to the site of the injury. Ms. Adams also indicated that she was ready to return to work. The
claims administrator held the claim compensable. Ms. Adams was then treated by E. Fritz
Braunlich, M.D., who diagnosed her with osteoarthritis of the shoulder, which involved the
acromioclavicular joint. He found that this restricted her ability to lift her shoulder. He also
suspected that this condition had caused right rotator cuff syndrome in both shoulders and
possibly a rotator cuff tear in the right shoulder. An MRI was then taken of Ms. Adams’s right
shoulder, which revealed a tear of the supraspinatus tendon of the rotator cuff. Based on this
MRI, Dr. Braunlich recommended that Ms. Adams undergo a right arthroscopic rotator cuff
repair. Ms. Adams was then treated at the direction of the claims administrator by C. Clark
Milton, D.O., who agreed with Dr. Braunlich that Ms. Adams’s ongoing shoulder problems were
related to tendinopathy and shoulder disease instead of the compensable shoulder strain. Zaveen
Kureishy, M.D., also treated Ms. Adams and found that she was temporarily and totally disabled
as a result of her shoulder problems. He found that her need for right shoulder surgery was
related to her work injury. On June 4, 2013, the claims administrator denied reopening her claim
for temporary total disability benefits. Following this denial, M. Kenamond, M.D., reviewed Ms.
Adams’s records and determined that Dr. Braunlich’s recommendation that she undergo surgery
was related to non-compensable and pre-existing conditions. On June 25, 2013, the claims
administrator denied authorization for right rotator cuff repair. On October 31, 2013, the Office
of Judges affirmed the claims administrator’s June 25, 2013, decision. On November 13, 2013,
the Office of Judges also affirmed the claims administrator’s June 4, 2013, decision. The Board
of Review affirmed both Orders of the Office of Judges on March 24, 2014, leading Ms. Adams
to appeal.

        In its October 31, 2013, Order, the Office of Judges concluded that the requested right
rotator cuff repair was not for an injury received in the course of and resulting from Ms. Adams’s
employment. The Office of Judges determined that the surgery was related to a tear of the
supraspinatus tendon of the right shoulder, which was not a compensable condition of the claim.
It noted that Dr. Braunlich diagnosed Ms. Adams with a right rotator cuff tear and related the
surgery to that diagnosis. However, it also found that the rotator cuff tear was related to
osteoarthritis instead of the compensable injury. The Office of Judges based this determination
on the opinion of Dr. Milton. The Office of Judges also determined that the remainder of the
record indicated that the request for rotator cuff surgery was related to non-compensable
conditions.

        In its November 13, 2013, Order, the Office of Judges concluded that Ms. Adams had not
established that she was unable to return to employment because of her compensable injury. The
Office of Judges found that Ms. Adams had not shown that there had been a progression or
aggravation of her compensable injury. The Office of Judges found that Dr. Kureishy’s report
showed that Ms. Adams’s continuing disability was related to her right rotator cuff tear and not a
compensable condition of the claim. The Office of Judges found that any continuing disability
Ms. Adams was experiencing was not due to the compensable injury. The Board of Review
adopted the findings of the Office of Judges and affirmed both Orders.


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         We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Adams has not demonstrated that the requested right shoulder rotator cuff repair is
medically related and reasonably required to treat her compensable injury. The treatment notes of
Dr. Milton show that Ms. Adams’s February 27, 2013, injury was limited to a shoulder strain.
Her need for the requested surgery is not related to this condition. Dr. Braunlich’s treatment
notes show that the surgery is related to a rotator cuff tear that was caused by osteoarthritis and
tendinopathy, which are not compensable conditions of the claim. Ms. Adams also has not
demonstrated that she is entitled to have her claim reopened for additional temporary total
disability benefits. The evidence in the record does not tend to justify an inference that there has
been a progression or aggravation of her compensable injury. Harper v. State Workmen’s Comp.
Comm’r, 160 W. Va. 364, 370, 234 S.E.2d 779, 783 (1977). The record shows that Ms. Adams
suffered a minor rotator cuff strain on February 27, 2013, and was able to return to work without
restrictions on the following day. There is not sufficient evidence in the record relating her
current disability to this injury, especially considering that Dr. Braunlich and Dr. Milton both
relate her ongoing conditions to osteoarthritis, which is not caused by the compensable injury.

        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 3, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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