                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                  April 23, 2013

                                                                             RORY L. PERRY II, CLERK

CABELA’S INC.,                                                             SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA
Employer Below, Petitioner

vs.)   No. 11-0683	 (BOR Appeal No. 2045096)
                    (Claim No. 2010103220)

SHERRY CUNNINGHAM,
Claimant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Cabela’s Inc., by Mark Grigoraci, its attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Sherry Cunningham, by William Gallagher,
her attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated March 21, 2011, in
which the Board modified an August 31, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s November 20,
2009, Order and found that rotator cuff tear was compensable as a secondary condition. 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. Cunningham was working for Cabela’s Inc. when she injured her left shoulder. On
August 21, 2009, the claims administrator held the claim compensable for a left shoulder
sprain/strain. Subsequently, Ms. Cunningham’s treating physician requested that rotator cuff tear
be added as a compensable condition based upon MRI results. Dr. Braunlich, an orthopedic
surgeon, found that Ms. Cunningham suffered from rotator cuff syndrome, and he recommended

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surgery for the left shoulder. The claims administrator denied the request to add rotator cuff tear
to the claim on November 20, 2009.

       The Office of Judges reversed the claims administrator’s Order, and found that the
preponderance of the evidence established that rotator cuff tear was compensable in the claim.
The Board of Review modified the Office of Judges’ Order, and added rotator cuff syndrome as
a compensable condition in the claim. The evidence demonstrates that Ms. Cunningham suffers
from both a left rotator cuff tear and rotator cuff syndrome in the left shoulder. Dr. Braunlich
suggested surgery as a course of treatment. We find Dr. Braunlich’s opinion persuasive; the
evidence demonstrates that the surgery recommended by Dr. Braunlich is medically necessary
and reasonably required treatment for the left shoulder problems Ms. Cunningham suffers from
due to her compensable injury. We agree with the reasoning and conclusions of both the Office
of Judges and Board of Review.

        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 Board of Review’s Order is affirmed with rotator cuff tear and
rotator cuff syndrome as compensable conditions. As a result of this holding, the surgery
recommended by Dr. Braunlich to treat such conditions is authorized.



                                                                           Affirmed as Modified.

ISSUED: April 23, 2013

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




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