                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 6, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDALL J. MULVEY SR.,                                                        OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1521 (BOR Appeal No. 2047240)
                   (Claim No. 2006210395)

MCELROY COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Randall J. Mulvey Sr., by Robert L. Stultz, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. McElroy Coal Company, by
Edward M. George III, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated November 30, 2012, in
which the Board affirmed a May 4, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 12, 2011, decision
which denied authorization for manipulation/injection of the right shoulder under anesthesia and
the addition of adhesive capsulitis of the shoulder and other specified disorders, rotator cuff
syndrome of the shoulder to the claim. In its Order, the Office of Judges also affirmed the claims
administrator’s May 16, 2011, decision which denied the addition of adhesive capsulitis of the
shoulder and other specified disorders, rotator cuff syndrome of the shoulder to the claim. 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. Mulvey, a coal miner, injured his right shoulder in the course of his employment
when a drill bit caught while he was drilling a hole and twisted his right hand and shoulder on
May 3, 2006. The claim was held compensable for right shoulder and upper arm sprain. Mr.
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Mulvey was evaluated by Bruce Guberman, M.D., in January of 2009. In that independent
medical evaluation, Dr. Guberman diagnosed chronic post-traumatic strain of the right shoulder.
He recorded 150° of elevation in flexion and abduction in both shoulders. Mr. Mulvey was
determined to be at maximum medical improvement and required no further treatment. It was
noted that he was working full time with no restrictions.

        Mr. Mulvey was treated by Robert Zaleski, M.D., in March of 2011. Dr. Zaleski’s
treatment note indicates that Mr. Mulvey was experiencing weakness in his right shoulder as
well as lack of terminal end points of motion. Dr. Zaleski diagnosed a component of bursitis and
adhesive capsulitis of the right shoulder. Ronald Fadel, M.D., disagreed with the diagnoses in a
May 10, 2011, utilization review. He determined that Dr. Zaleski’s diagnosis of adhesive
capsulitis was based upon the subjective impression of lost terminal end points of motion which
was insufficient to establish the diagnosis. Dr. Fadel noted that Dr. Guberman measured range of
motion of both shoulders and found that they were both below average; however, because the
range of motion was the same in the left shoulder as the right, the lower range of motion in the
right shoulder was determined to be normal. Gregory Wood, D.O., Mr. Mulvey’s treating
physician, testified in a deposition on December 12, 2011. He stated that he referred Mr. Mulvey
to Dr. Zaleski for an orthopedic assessment and that he concurred with Dr. Zaleski’s diagnoses.
Dr. Wood explained that adhesive capsulitis was caused by the compensable injury because once
a joint is injured a person begins using it less and stiffness and decreased range of motion
develop.

        The claims administrator denied authorization for manipulation/injection of the right
shoulder under anesthesia and the addition of adhesive capsulitis of the shoulder and other
specified disorders, rotator cuff syndrome of the shoulder to the claim on May 12, 2011. On May
16, 2011, the claims administrator again denied the addition of adhesive capsulitis of the
shoulder and other specified disorders, rotator cuff syndrome of the shoulder to the claim. The
Office of Judges affirmed the claims administrator’s decisions in its May 4, 2012, Order.

        The Office of Judges determined that the claims administrator’s denials were based
primarily upon Dr. Fadel’s utilization review, which the Office of Judges found to be persuasive.
It determined that Dr. Wood’s testimony was based upon Dr. Zaleski’s one-time evaluation of
Mr. Mulvey. It further found that Dr. Zaleski made the diagnoses and recommended the
requested treatment; however, he failed to attribute the requested diagnoses to the compensable
injury. Because Dr. Wood actually made the request for treatment and the addition of the
diagnosis codes, the Office of Judges concluded that the burden of establishing a causal
connection between the requested diagnoses and the work-related injury was upon him. Dr.
Wood acknowledged that range of motion measurements was the ideal way to diagnose adhesive
capsulitis, but failed to explain why Dr. Zaleski did not record, or perhaps even measure, Mr.
Mulvey’s shoulder range of motion. Dr. Wood also acknowledged that adhesive capsulitis can
sometimes develop with no known cause. The Office of Judges found that Dr. Wood seemed
unsure as to what the diagnosis code other specified disorders, rotator cuff syndrome of the
shoulder was intended to describe. It concluded that Dr. Wood failed to establish a causal
connection between the requested diagnoses and treatment and the compensable injury.

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        The Office of Judges found it unclear how or why Mr. Mulvey developed adhesive
capsulitis after Dr. Guberman’s 2009 independent medical evaluation. At the time of the
evaluation, Mr. Mulvey was at maximum medical improvement and had sustained minimal
permanent impairment from his work-related injury. Dr. Guberman considered Mr. Mulvey’s
degenerative changes when making his impairment recommendation. The Office of Judges
determined that this indicated that it was important to compare the range of motion of the left
shoulder to that of the right in order to accurately make a diagnosis of adhesive capsulitis.
Ultimately, the Office of Judges held that Mr. Mulvey failed to establish that the requested
treatment and the addition of the diagnoses codes were necessitated by his compensable injury.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its November 30, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The evidentiary record fails to establish that
the requested treatment and diagnoses are casually connected to the compensable injury.

        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: June 6, 2014

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




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