                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
ASPLUNDH TREE EXPERT COMPANY,                                                       July 20, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 18-0347 (BOR Appeal No. 2052314)
                   (Claim No. 2016020928)

MATTHEW BROWN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Asplundh Tree Expert Company, by Melissa M. Strickler, its attorney, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Matthew Brown, by
Stephen P. New and Stacey L. Fragile, his attorneys, filed a timely response.

        The issue on appeal is compensability of the claim. On February 16, 2016, the claims
administrator rejected Mr. Brown’s application for benefits. The Workers’ Compensation Office
of Judges reversed the claims administrator’s decision and found the claim compensable for right
shoulder dislocation on November 3, 2017. The Office of Judges also granted temporary total
disability benefits as substantiated by the record. This appeal arises from the Board of Review’s
Order dated April 2, 2018, in which the Board affirmed and modified the decision of the Office
of Judges. The Order was modified to reflect that the claim is compensable for a one-time
dislocation of the right shoulder. The Board of Review found that treatment for the right shoulder
dislocation should be covered from December 16, 2015, through June 16, 2016. 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. Brown, a tree trimmer, sustained a workplace injury on December 16, 2015. He was
transported to the emergency room of Raleigh General Hospital by foreman Jeremy Ennis with
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complaints of right shoulder pain. Mr. Brown was examined by Jose Romero, M.D., and
underwent x-rays of the right shoulder, which revealed anterior glenohumeral dislocation and
reduced right shoulder dislocation. He was discharged with instructions to follow up with his
physician, to take pain medication as needed, to wear an arm sling for several days, and to
perform range of motion exercises.

        On December 20, 2015, Mr. Brown completed an Employee’s Report of Occupational
Injury form. The physician’s section of the form was completed by Dr. Romero. The claims
administrator rejected Mr. Brown’s application for benefits in an Order issued on February 16,
2016. The claims administrator rejected the claim due to Mr. Brown’s medical history of prior
shoulder dislocations. The medical record indicated that Mr. Brown had dislocated his shoulder
multiple times prior to the alleged incident on December 16, 2015. The claims administrator
concluded that the shoulder dislocation was not a result of Mr. Brown’s employment. It was the
claims administrator’s belief that the dislocation of Mr. Brown’s shoulder could have happened
at any time regardless of whether he was working or not. Mr. Brown filed a timely protest to the
claims administrator’s decision.

        On January 13, 2016, Mr. Brown presented to James DeHaven, M.D. and Michael
Taylor, M.D., of Summersville Orthopedics with complaints of right shoulder pain. Mr. Brown
reported that he had experience 7-8 prior dislocations, with the last occurrence in 2012. Dr.
DeHaven placed Mr. Brown on light duty restrictions at work, and he was ordered to not climb
trees. An MRI of the right shoulder was ordered, and Dr. DeHaven expressed the need for
possible shoulder stability surgery.

        In treatment records dated May 23, 2016, Dr. DeHaven noted that, “[t]his dislocation was
just one in a series of several; therefore, not work related.” Dr. DeHaven noted that Mr. Brown
advised him that he had a history of past dislocations. On June 16, 2016, Mr. Brown presented
to Dr. DeHaven for a follow-up and to obtain the results of his MRI. The notes revealed, “the
MRI was pretty much normal as far as the glenoid. He has a little mild uptake in the lateral
aspect of the humeral head itself, which is just a residual from his injury from dislocation.” Dr.
DeHaven was of the opinion that Mr. Brown would have to have surgery to stabilize his
shoulder.

       On August 8, 2016, Mr. Brown presented to Dr. DeHaven and Dr. Taylor for follow-up
and to obtain results from his EMG and NCV studies. Treatment notes revealed, “the EMG and
NCV studies revealed mild carpal tunnel syndrome, but this is not carpal tunnel syndrome, and
then some other sort of polyradiculopathy of his cervical spine. He wants to go ahead and have
his shoulder fixed. He will be put on the schedule for an arthroscopic-assisted Bankart repair or
capsular shift type operation if his labrum is okay.”

        Mr. Brown underwent arthroscopic surgery at Summersville Regional Medical Center on
October 7, 2016. Dr. DeHaven performed an arthropscopic open Bankart repair of Mr. Brown’s
right shoulder. Mr. Brown tolerated the surgery well and his right arm was placed in a sling. He
underwent post-operative treatment consisting of exercise, manual therapy, ultrasound, e-stim
therapy, and cold therapy.
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         On October 25, 2016, Mr. Brown gave his sworn testimony in support of his claim. He
testified about his employment with the Asplundh Tree Expert Company and how he was injured
on December 16, 2015. Mr. Brown testified that he has had prior dislocations between 2006
through 2011. Mr. Brown testified that on December 16, 2015, he was “hunching” and moving
up the tree while using ropes with friction knots. As he was pushing up with his right hand, he
heard and felt a loud pop in his shoulder. He immediately experienced an excruciating amount
of pain. Although he had suffered several dislocations in the past, Mr. Brown testified that it did
not feel like the occasions when he injured himself by falling or after an ATV accident. He
explained that a co-worker, Daniel Shrewsbury, helped him remove his gear, and the general
foreman was called. He was transported to Raleigh General Hospital, where he was diagnosed
with right shoulder dislocation. He testified that he has had no dislocations since December 16,
2015.

         Mr. Brown submitted the sworn testimony of Daniel Shrewsbury, a line clearance
employee of the employer, who was deposed on October 25, 2016. Mr. Shrewsbury testified that
he was working with Mr. Brown on December 16, 2015, and was present when he dislocated his
shoulder. He testified that as Mr. Brown was moving up the tree and slid his knot up, he heard a
noise that caused him to ask Mr. Brown if he was okay. When Mr. Brown returned to the ground,
he told Mr. Shrewsbury that he had dislocated his shoulder. Mr. Shrewsbury testified that the job
involves pulling your body weight. Mr. Shrewsbury was Mr. Brown’s direct supervisor. He
testified that he and several other of his co-workers drafted incident notes about the injury.

       Following the service of a Subpoena/Subpoena Duce Tecum, Dr. Romero was deposed
on January 10, 2017. Dr. Romero testified as to his credentials, past medical experience, and his
medical treatment of Mr. Brown. Dr. Romero was the physician who treated Mr. Brown on
December 16, 2015, for the right shoulder dislocation injury. Dr. Romero ordered x-rays of the
shoulder and made a diagnosis of anterior glenohumeral dislocation. He testified that
determination of causation of Mr. Brown’s dislocation is beyond him and should be issued by an
orthopedic specialist. Dr. Romero stated that statistics support the opinion that someone who has
sustained one prior dislocation is more susceptible to further dislocations of the shoulder. Dr.
Romero signed the Report of Injury form and testified that the information submitted on the form
was accurate based upon the treatment given to Mr. Brown on December 16, 2015.

       Jeremy Ennis, general foreperson for the employer, was deposed on March 4, 2017. Mr.
Ennis testified that he was working about a mile away from Mr. Brown on December 16, 2015,
when he received a call about Mr. Brown’s injury. Mr. Ennis testified that Mr. Brown had
worked with him for about a fourteen month span of time. During that span of fourteen months,
Mr. Ennis was not aware of Mr. Brown suffering any incidents involving his shoulder. Mr. Ennis
transported Mr. Brown to Raleigh General Hospital for treatment. Mr. Ennis testified that he
completed section one of the Report of Occupational Injury for Mr. Brown.

        On May 11, 2017, Dr. DeHaven testified in a deposition that he began treating Mr.
Brown on January 13, 2016. Dr. DeHaven testified that Mr. Brown has a recurrent dislocation
history, with the last being in 2012. Mr. Brown presented with complaints of numbness in his
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upper extremity. On October 7, 2016, Dr. DeHaven performed a Bankair repair on Mr. Brown’s
shoulder. In a treatment note, Dr. DeHaven stated that the dislocation was just one in a series of
several, which led Dr. DeHaven to conclude that the injury was not work-related. He testified
with Mr. Brown’s history of dislocation, he was simply a dislocation waiting to happen.
Specifically, Dr. DeHaven stated, “[i]t doesn’t make any difference who he’s working for or
where he’s at, at that point, it’s going to happen again, at least statistically.” However, Dr.
DeHaven further testified that spontaneous dislocation rarely ever occurs and that there is always
some sort of activity that puts the shoulder in an unstable position which would lead to the
dislocation.

        By Final Order dated November 3, 2017, the Office of Judges reversed the claims
administrator’s decision and found that Mr. Brown had sustained a right shoulder dislocation in
the course of and resulting from his employment. The Office of Judges concluded that Mr.
Brown’s testimony, as well as the testimony of his co-workers, establishes that an injury
occurred in the course of his employment on December 16, 2015. Mr. Brown testified that he
heard his shoulder pop while he was moving up a tree while working. Mr. Shrewsbury’s
testimony corroborates the incident. The clinical findings, which were verified by x-ray
evidence, are consistent with a diagnosis of dislocated right shoulder. Although Dr. DeHaven
opined that the injury was not work-related, the Office of Judges found his opinion to be
unreliable in light of the evidentiary record. Mr. Brown has a history of dislocation with his last
one occurring in 2011-2012, approximately three to four years before the date of injury. His
foreperson, Mr. Ennis, testified that Mr. Brown had been working for him for about fourteen
months prior to the injury without a reported issue of dislocation. The Office of Judges reasoned
that Mr. Brown suffered an isolated fortuitous injury that was unlike previous dislocations. The
record indicates that the dislocation resulted in the shoulder ball-joint ending up against the chest
muscle. The Office of Judges concluded that the evidence clearly shows that Mr. Brown’s
dislocation of the right shoulder resulted from performing his work duties during employment,
and is therefore compensable. As a result of the compensability finding, the Office of Judges
granted Mr. Brown temporary total disability benefits as substantiated by the evidence. The
employer appealed the decision to the Board of Review.

        On April 2, 2018, the Board of Review affirmed and modified the decision of the Office
of Judges. The Board agreed with the conclusion that Mr. Brown sustained a right shoulder
dislocation in the course of and resulting from his employment on December 16, 2015. However,
the Board found that the claim should be limited to a one-time dislocation of the right shoulder.
The Board noted Mr. Brown’s multiple shoulder dislocations in the past in making its decision.
The Board also determined that any treatment for Mr. Brown’s right shoulder from December
16, 2015, through June 16, 2016, was medically necessary and reasonably required for the
compensable injury.

       After review, we agree with the reasoning and conclusions of the Board of Review. The
evidence of record demonstrates that Mr. Brown suffered a compensable injury in the course of
and as a result of his employment as a tree trimmer with the employer. It was proper for the
Board of Review to deem any treatment for Mr. Brown’s right shoulder injury from December
16, 2015, through June 16, 2016, as being medically necessary and reasonably required treatment
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for the compensable injury. Given Mr. Brown’s history of multiple dislocations, it was also
proper for the Board of Review to limit the claim to a one-time dislocation of the right shoulder.

        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 20, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspended and therefore not participating




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