                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 24, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES E. EVANS JR.,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1509 (BOR Appeal No. 2045751)
                   (Claim No. 920035011)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

FEDERAL EXPRESS CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner James E. Evans Jr., by M. Jane Glauser, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Gary M. Mazezka, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 11, 2011, in
which the Board affirmed a February 28, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 13, 2010,
decision denying authorization for a referral to Dr. Burke for treatment of the shoulder and
rotator cuff. 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited

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circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        On January 18, 1992, Mr. Evans was injured while working as a courier for Federal
Express Corporation, when he was struck by a moving vehicle. The evidence of record indicates
that the incident caused multiple injuries, which were held compensable, including rotator cuff
strain and adhesive capsulitis of the shoulder. On September 9, 2008, the claims administrator
authorized total knee arthroplasty and removal of a support implant but the evidence in record
does not establish whether the procedure was performed. On April 2, 2010, Dr. Naum requested
authorization for a referral to Dr. Burke for treatment of Mr. Evans’s left shoulder and rotator
cuff tear. A medical statement from Dr. Naum, dated April 15, 2010, indicated that the shoulder
injury was caused by the use of crutches following knee replacement surgery and that the
treatments were medically necessary because the pain was so intense that Mr. Evans was unable
to use his shoulder. The claims administrator denied authorization for the requested referral on
May 13, 2010. The claims administrator’s decision was affirmed by the Office of Judges on
February 28, 2011, and by the Board of Review on October 11, 2011, leading to this appeal.

        The Office of Judges concluded that the requested referral to Dr. Burke was not
medically related or reasonably necessary to treat Mr. Evans’s compensable injury because Mr.
Evans did not present sufficient evidence to meet his burden of proof. The Office of Judges
found that the evidence in the record indicated that rotator cuff strain and adhesive capsulitis of
the shoulder were both compensable conditions of the claim. The Office of Judges also found
that Mr. Evans was authorized to receive total knee arthroplasty and removal of a support
implant, but it found no evidence that the surgery occurred beyond the cursory statement
appearing in Dr. Naum’s medical statement, which was not accompanied by medical evidence or
documentation of Dr. Naum’s examination. The Office of Judges concluded that the evidence in
the record was insufficient to demonstrate that the requested referral was medically related and
reasonably necessary to treat the compensable injury in this claim. The Board of Review adopted
the findings of the Office of Judges and affirmed its Order.

        The conclusion of the Board of Review was based upon the Board’s material
misstatement and mischaracterization of the evidentiary record. Mr. Evans has presented
sufficient evidence to show that the requested referral to Dr. Burke is medically related and
reasonably necessary to treat his compensable injury. Dr. Naum’s medical statement
demonstrates that the requested treatment relates to Mr. Evans’s rotator cuff tear and the record
establishes that the rotator cuff tear is part of Mr. Evans’s compensable January 18, 1992, injury.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
the Board’s material misstatement or mischaracterization of particular components of the
evidentiary record. Therefore, the decision of the Board of Review is reversed and remanded to
the Board with directions to grant Mr. Evans’s request for a referral to Dr. Burke for treatment of
the shoulder and rotator cuff.


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                                      Reversed and remanded.

ISSUED: October 24, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum

DISSENTING
Justice Robin J. Davis
Justice Allen H. Loughry II




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