                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
KARRY L. JENKINS,                                                              November 20, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0281 (BOR Appeal No. 2046420)
                   (Claim No. 2009084776)

AFG INDUSTRIES, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
        Petitioner Karry L. Jenkins, by George Zivkovich, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. AFG Industries, Inc., by Marion E.
Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 2, 2012, in
which the Board affirmed a September 20, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 5, 2010,
Order denying Ms. Jenkins’s request for a TENS unit for her right shoulder. 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.

       On January 8, 2009, Ms. Jenkins was employed as a glass inspector with AFG Industries,
Inc. when she injured her right shoulder while pulling samples of flat glass onto a large table.
Ms. Jenkins’s claim was held compensable for sprain/strain of the shoulder and calcifying
tendonitis of the shoulders. On August 5, 2010, the claims administrator denied Ms. Jenkins’s
request for a TENS unit for her right shoulder.

        The Office of Judges held that a preponderance of the evidence failed to establish a need
for a TENS unit treatment for Ms. Jenkins’s shoulder sprain. Ms. Jenkins disagrees and asserts
that the evidence demonstrates that her pain is caused by her shoulder sprain and the calcifying
tendonitis of the right shoulder and not by her fibromyalgia. AFG Industries, Inc. maintains that
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Ms. Jenkins has failed to establish by a preponderance of the evidence the need for an exception
to the treatment guidelines. On February 26, 2009, an x-ray of Ms. Jenkins’s right shoulder
revealed possible calcific tendinitis or bursitis. On November 29, 2009, Ms. Jenkins had a right
shoulder MRI at Grafton City Hospital that revealed mild tendinosis. On April 9, 2010, Dr. Sethi
found that Ms. Jenkins had reached maximum medical improvement. Dr. Sethi noted that Ms.
Jenkins had a history of fibromyalgia and was currently working without restrictions as a
breakfast specialist with occasional mild pain in her shoulder. On June 3, 2010, Dr. Thaxton
recommended denying authorization of a TENS unit. Based on Dr. Sethi’s findings, Dr. Thaxton
could not relate the request for a TENS unit to the compensable injury. On July 30, 2010, the
StreetSelect Grievance Board agreed with Dr. Thaxton and Dr. Sethi that a TENS unit should not
be authorized. On April 11, 2011, Dr. Bender made another request for a TENS unit that reported
Ms. Jenkins had sustained a work-related injury on January 8, 2009; that she had been treated
conservatively with non-steroidal anti-inflammatory drugs, a trial of joint injections and muscle
relaxers; and that only the TENS unit had helped reduce her pain.

        The Office of Judges noted that after the AFG Industries Plant closed Ms. Jenkins
became a hotel breakfast hostess and worked without any restrictions. It concluded that Ms.
Jenkins had a significant history of pre-existing shoulder pain in both shoulders since 1991, due
to fibromyalgia. The Office of Judges noted that during an April 9, 2010, independent medical
exam by Dr. Sethi, Ms. Jenkins stated that she occasionally had mild pain in the shoulder area.
The Office of Judges held that a TENS unit was not medically related or reasonably required
treatment for Ms. Jenkin’s compensable injury. The Board of Review reached the same reasoned
conclusions in its decision of February 2, 2012. We agree with the reasoning and conclusions of
the 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 decision of the Board of Review is affirmed.

                                                                                        Affirmed.


ISSUED: November 20, 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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