                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 1, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BRIAN K. ALFORD,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0069 (BOR Appeal No. 2046172)
                   (Claim No. 2009095548)

MERRY X-RAY CHEMICAL CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Brian K. Alford, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Merry X-Ray Chemical Corporation,
by Alyssa Sloan, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 22, 2011, in
which the Board affirmed a July 8, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 22, 2010, decision
denying a request to add subacromial bursitis and rotator cuff tendinitis as compensable
conditions. 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. Alford was working for Merry X-Ray Chemical Corporation as a field engineer when
he injured his right shoulder lifting a rack onto an x-ray processor on June 17, 2009. The claim
was held compensable for sprain/strain of the shoulder/arm. This Court in memorandum decision
number 11-0947 affirmed the denial of a request to reopen the claim for temporary total
disability benefits, and affirmed the denial of a request for a right shoulder arthroscopy, as the
requests were not related to the compensable injury. On October 22, 2010, the claims

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administrator denied a request to add subacromial bursitis and rotator cuff tendinitis as
compensable conditions.

        The Office of Judges affirmed the claims administrator’s decision, and held that the
preponderance of the evidence does not establish the causal relationship between the
compensable injury and the requested conditions. On appeal, Mr. Alford argues that given the
lack of evidence demonstrating a preexisting problem and Dr. Cox’s medical statement the
reasonable conclusion is that the current conditions were caused by the compensable injury.
Merry X-Ray Chemical Corporation argues that the current conditions are inflammatory
conditions which were not caused by the compensable injury. In a February 8, 2011, medical
statement Dr. Cox noted that Mr. Alford continued to have pain on October 28, 2009, and a
physical exam showed positive impingement signs in the right shoulder, definite tenderness, and
strong resisted internal and external rotation. Dr. Cox also noted that surgery was performed on
January 21, 2010, and found significant subacromial bursitis. Dr. Werntz, on December 8, 2009,
performed a physician review and found that Mr. Alford had a common anatomic variant which
worsens with age, and that the degenerative changes are age related and not brought on by
activity or trauma, unless there is a fracture. In a September 10, 2010, physician review, Dr.
Dauphin found that new evidence did not change the opinion that the changes present in the right
shoulder are the result of natural deterioration of an organ or tissue and not related to the June
17, 2009, shoulder sprain/strain. Dr. Dauphin noted that there was insufficient trauma to create
the current conditions.

        In affirming the claims administrator’s decision, the Office of Judges noted that Dr. Cox
did not adequately explain the causal relationship between the compensable injury and
subsequent development of subacromial bursitis and rotator cuff tendinitis. It noted that an MRI
near the date of the compensable injury did not reflect these findings, but an MRI on April 24,
2010, showed rotator cuff tendinopathy and possible subacromial bursitis. The Office of Judges
further noted that both Dr. Werntz and Dr. Dauphin found that the subacromial narrowing is age-
related, and this was not disputed in the record. The evidence did not establish that subacromial
bursitis and rotator cuff tendinitis should be compensable conditions in this claim. The Board of
Review reached the same reasoned conclusions in its decision of December 22, 2011. 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.




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ISSUED: November 1, 2013

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

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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