                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

GEORGIANA ALLISON,
                                                                                        FILED
Claimant Below, Petitioner                                                             July 31, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.)   No. 19-0414 (BOR Appeal No. 2053730)                                          OF WEST VIRGINIA
                   (Claim No. 2016027351)

MTR GAMING,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Georgiana Allison, by Counsel Patrick K. Maroney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). MTR Gaming, by
Counsel Daniel G. Murdock, filed a timely response.

        The issues on appeal are temporary total disability benefits and medical benefits. The
claims administrator granted temporary total disability benefits for April 28, 2016, and closed the
claim on February 16, 2018. On May 8, 2018, the claims administrator denied authorization for a
right shoulder MRI. The Office of Judges affirmed the decisions in its December 10, 2018, Order.
The Order was affirmed by the Board of Review on April 3, 2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Allison, a hotel housekeeper, was injured in the course of her employment on April
24, 2016. Treatment notes from East Liverpool City Hospital Emergency Department indicate she
was lifting towels at work and heard a pop in her right shoulder, which was followed by pain. Ms.
Allison stated that she had preexisting nerve damage in the shoulder due to a motor vehicle
accident. She was diagnosed with right shoulder strain. The Employees’ and Physicians’ Report
of Injury, completed on April 26, 2016, indicates Ms. Allison injured her right shoulder while
lifting towels. The diagnosis was listed as right shoulder strain, and she was placed on modified
work duties.
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        Ms. Allison sought treatment from John Schultz, M.D., on May 6, 2016, for right shoulder
pain. Dr. Schultz diagnosed rotator cuff sprain and prescribed physical therapy. On May 9, 2016,
Dr. Schultz completed a physical capability form indicating that Ms. Alison was restricted to
sedentary work until May 23, 2016. On May 18, 2016, a right shoulder x-ray was performed and
showed no abnormalities. Ms. Allison returned to Dr. Schultz on May 20, 2016, and reported right
shoulder pain aggravated by movement. He noted that she underwent a few physical therapy
sessions which yielded slight improvement. Ms. Allison was working modified duty but requested
to be released to full time duty. Dr. Schultz obliged.

         On July 20, 2016, Charles Capito, M.D., an orthopedist, noted that Ms. Allison reported
pain and numbness in her right shoulder/arm. Dr. Capito opined that the symptoms were
originating from either a cervical disc or the brachial plexus nerve group. He referred Ms. Allison
to a neurologist. A patient visit information form completed at East Liverpool City Hospital on
September 1, 2016, indicates Ms. Allison was diagnosed with cervical radiculopathy and released
to full duty work. On September 9, 2016, Jody Leonardo, M.D., stated in a letter that Ms. Allison
should remain off of work until a follow up examination could be completed.

       Dr. Schultz completed a reopening request form for temporary total disability benefits on
October 6, 2016, indicating that Ms. Allison had numbness and weakness in her right
shoulder/arm. He stated that she was disabled from May 8, 2016, through the present. In an
attached work excuse slip, Dr. Schultz indicated Ms. Allison was unable to work from October 5,
2016, to December 20, 2016.

        On May 5, 2017, the Office of Judges reversed a claims administrator decision rejecting
the claim. The Office of Judges held the claim compensable for right shoulder strain. The Office
of Judges agreed with the opinion of ChuanFang Jin, M.D., that Ms. Allison’s widespread
symptoms are not the result of the compensable injury.1

        Ms. Allison testified in a deposition on May 11, 2017, that she was involved in a motor
vehicle accident in 2004, which resulted in nerve damage to her right elbow and arm. She testified
that her right shoulder was not affected by the accident and that she fully recovered from the injury.
Ms. Allison also described a 2014 motor vehicle accident in which she injured her neck and low
back. The injury required approximately one month of physical therapy. Ms. Allison testified that
she was off of work from the date of the injury until May 6, 2016, when she returned to light duty.
She worked until August of 2016, when she was taken off of work by her neurosurgeon.

       On June 1, 2017, Ms. Allison sought treatment from Weirton Medical Center for right
shoulder pain. She was diagnosed with history of white matter lesions, right shoulder pain, sensory
neuropathy due to diabetes, osteostasis white matter disease, and paresthesia.

       Dr. Jin performed an independent medical evaluation on September 28, 2017, in which she
diagnosed right shoulder sprain/strain with a history of right shoulder pain. Dr. Jin also diagnosed

       1
           Dr. Jin’s report was not introduced into the record.
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nonspecific wide-spread symptoms of uncertain etiology. She noted that Ms. Allison’s symptoms
at the time of evaluation were more severe than would be expected with a shoulder sprain/strain.
Dr. Jin further found that her symptoms were not explained by diagnostic or clinical findings. Dr.
Jin believed that Ms. Allison had reached maximum medical improvement for her compensable
right shoulder strain.

       On February 16, 2018, the claims administrator granted temporary total disability benefits
for April 28, 2016, and closed the claim for temporary total disability benefits. On April 7, 2018,
Ms. Allison underwent a right shoulder MRI which showed mild acromioclavicular joint
degenerative changes. The claims administrator denied authorization for the MRI on May 8, 2018.

         Bill Hennessey, M.D., performed an independent medical evaluation on June 19, 2018, in
which he noted that Ms. Allison reported severe right shoulder pain during examination. However,
Dr. Hennessey found identical muscle bulk on the right arm/shoulder as he did on the uninjured
left side. He opined that Ms. Allison’s range of motion findings were invalid due to her report of
inappropriately high pain levels. Dr. Hennessey diagnosed right shoulder strain and found that Ms.
Allison had reached maximum medical improvement. He opined that she required no further
treatment and noted that he believed she was malingering.

        The Office of Judges affirmed the claims administrator’s decisions closing the claim for
temporary total disability benefits and denying authorization of a right shoulder MRI in its
December 10, 2018, Order. It found that the evidence regarding Ms. Allison’s temporary total
disability was not specific enough to grant benefits. The Office of Judges found that Ms. Allison
was restricted to modified duty the day after the compensable injury occurred. On May 20, 2016,
Dr. Schultz noted that Ms. Allison was working light duty and released her to return to full duty
work. Then, Dr. Schultz completed the reopening application on October 5, 2016, and stated that
Ms. Allison was temporarily and totally disabled from May 8, 2016, to the present. Attached was
a work excuse slip which stated that Ms. Allison was unable to work from October 5, 2016, through
December 20, 2016. The Office of Judges therefore found that Dr. Schultz opined Ms. Allison was
temporarily and totally disabled after he had already released her to return to work. Further, her
deposition was not specific enough regarding the dates she was unable to work due to the
compensable injury.

        Regarding authorization of a right shoulder MRI, the Office of Judges found that Ms.
Allison failed to show that the MRI was requested due to her compensable right shoulder sprain.
The Office of Judges noted that the last treatment note from Dr. Schultz was two years before the
right shoulder MRI and that treatment note did not reference a right shoulder MRI. Further, Dr.
Jin concluded in her September 28, 2017, evaluation that no further treatment was necessary for
the compensable injury. The Board of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on April 3, 2019.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence regarding temporary total disability benefits is
insufficient to grant such benefits, and the MRI was properly denied because it was not necessary
medical treatment for the compensable injury.
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        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: July 31, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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