                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CAROLYN R. BENDA,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0803	 (BOR Appeal No. 2046898)
                   (Claim No. 2010107747)

FAYETTE COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Carolyn R. Benda, by John Shumate Jr., her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The Fayette County Board of
Education, by Steven Wellman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 7, 2012, in which
the Board affirmed a February 6, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 15, 2010, decision
denying Ms. Benda’s request to reopen her claim for temporary total disability benefits and
medical benefits. 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. Benda slipped and fell on September 17, 2009, while employed as a teacher with the
Fayette County Board of Education. She sought medical treatment on September 19, 2009, and
stated that she had injured her right thigh and right elbow in a fall. On October 8, 2009, the
claims administrator held the claim compensable for sprain/strain of the elbow, sprain/strain of
the shoulder, sprain/strain of the hip/thigh, and lumbosacral sprain/strain. Ms. Benda
subsequently received temporary total disability benefits in connection with this claim.

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        On October 18, 2009, Ms. Benda reported that she had recently injured her left shoulder
and back after slipping and falling on a puddle of water in a store. On January 6, 2010, the claims
administrator closed the claim arising from the September 17, 2009, compensable injury for
temporary total disability benefits. On August 12, 2010, Ms. Benda underwent a CT scan of her
left shoulder which revealed a full-thickness tear of the rotator cuff tendon. On August 16, 2010,
Ms. Benda filed an application to reopen her claim for temporary total disability benefits alleging
that she sustained an aggravation or progression of her compensable injury and also alleging the
existence of new facts in the evidentiary record that had not been previously considered. On
October 15, 2010, the claims administrator denied Ms. Benda’s request to reopen her claim for
temporary total disability benefits and medical benefits.

        In October of 2010, Ms. Benda came under the care of John Jasko, M.D., whose
treatment notes indicate that Ms. Benda reported injuring her left shoulder in a fall at work on
September 17, 2009. After extended treatment, Dr. Jasko eventually performed an arthroscopic
repair of Ms. Benda’s torn left rotator cuff. In a letter to Ms. Benda’s attorney dated October 25,
2011, Dr. Jasko stated that Ms. Benda indicated to him that her September 17, 2009, fall at work
initiated her problems with her left shoulder. He stated that Ms. Benda did not report sustaining
an intervening injury after September 17, 2009, and that it is therefore plausible to consider her
current condition an aggravation or progression of the September 17, 2009, work-related injury.
Dr. Jasko then stated that Ms. Benda was temporarily and totally disabled from November 16,
2010, the date of her rotator cuff repair, through February 23, 2011.

        In its Order affirming the October 15, 2010, claims administrator’s decision, the Office of
Judges held that the evidence of record demonstrates that Ms. Benda is not entitled to a
reopening of her claim because she has not suffered a progression or aggravation of her
compensable September 17, 2009, injury, and that there are no facts previously unconsidered in
the claim as is necessary for a reopening under West Virginia Code § 23-5-3 (2009). The Office
of Judges also directed the claims administrator to issue protestable Orders either granting or
denying multiple requests for treatment made by Ms. Benda.

        The Office of Judges found that there is no persuasive medical evidence linking Ms.
Benda’s application to reopen her claim for temporary total disability benefits with the
September 17, 2009, compensable injury. Further, the Office of Judges found that Dr. Jasko, who
completed the application to reopen the claim for temporary total disability benefits, appears to
be completely unaware of Ms. Benda’s injury that occurred in October of 2009. Therefore, the
Office of Judges concluded that Dr. Jasko’s opinion is unpersuasive. As was noted by the Office
of Judges, the preponderance of the evidence establishes that Ms. Benda’s left rotator cuff tear,
for which she seeks temporary total disability benefits, is attributable to an intervening, non­
work-related injury that occurred in October of 2009. With regard to Ms. Benda’s request to
reopen her claim for medical treatment, the Office of Judges found that the claims
administrator’s decision did not specifically deny any particular form of medical treatment. It
therefore instructed the claims administrator to either grant or deny authorization for each of the
specifically requested treatments by protestable Order. The Board of Review reached the same
reasoned conclusions in its decision of June 7, 2012. We agree with the reasoning and
conclusions of the Board of Review.
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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: March 18, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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