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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

MURRAY AMERICAN ENERGY, INC.,

Employer Below, Petitioner

vs.) No. 19-0257 (BOR Appeal No. 2053431)

(Claim No. 2018013969)

 

REX ASHLEY, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Murray American Energy, Inc., by Counsel Denise D. Pentino and Aimee M. 

Stern, appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board 

of Review”). Rex Ashley, by Counsel Robert L. Stultz, filed a timely response.

The issue on appeal is additional compensable conditions. The claims administrator denied 

a request to add right shoulder impingement syndrome and cervical disc displacement to the claim

on April 4, 2018. The Office of Judges reversed the decision in its September 18, 2018, Order and 

added the conditions to the claim. The Order was affirmed by the Board of Review on February 

22, 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. 

Mr. Ashley, a coal miner, injured his right shoulder and back in the course of his 

employment when he tripped and fell on December 4, 2017. The Employee’s and Physician’s 

Report of Injury was completed that day by John Manchin, D.O., and indicates Mr. Ashley 

sustained a right shoulder contusion and radiculopathy as a result of the work-related injury. 

A treatment note by Mon Health Medical Center dated December 7, 2017, indicates Mr. 

Ashley was treated for right shoulder pain, which developed after he fell at work. X-rays showed 

no abnormal findings in the right shoulder. Range of motion was painful but normal, and strength 

FILED

June 26, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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and impingement testing were also normal. The diagnosis was listed as shoulder contusion. Mr. 

Ashley returned to Dr. Manchin on December 11, 2017. He reported that he developed shoulder 

pain immediately following his injury, but he was able to complete his work day. Mr. Ashley was 

unable to work the following day and sought medical treatment. He stated that his shoulder was 

fine prior to the injury. Dr. Manchin found decreased range of motion on examination. The claim 

was held compensable for right shoulder contusion on December 19, 2017.

A December 26, 2017, treatment note by Nathan Hundley, M.D., from Mon Health Medical 

Center, indicates Mr. Ashley was seen for right shoulder pain as well as numbness and pain in his 

elbow. Dr. Hundley recommended an MRI. Mr. Ashley saw Scott Benson, M.D., from Mon Health 

Medical Center, on January 1, 2018. The treatment note indicates Mr. Ashley was on his way to 

work when he experienced increased pain in his right shoulder. Range of motion was painful. Dr. 

Benson diagnosed chronic right shoulder pain. Two days later, Mr. Ashley was seen by Dr. 

Manchin who indicated he could not work for a few weeks due to right shoulder pain. Dr. 

Manchin’s diagnosis was right shoulder contusion with sprain/strain. 

A right shoulder MRI was performed on January 16, 2018, which showed subchondral 

cystic changes in this humeral head and moderate to severe hypertrophic degenerative spurring in 

the acromioclavicular joint with mild to moderate impingement. Mr. Ashley returned to Dr. 

Manchin on January 17, 2018, and reported that he remained unable to work due to shoulder pain. 

It was noted that a recent cervical MRI showed disc bulging at C5-6 and C6-7 causing mild 

stenosis. Dr. Manchin stated that Mr. Ashley complained of pain, numbness, and tingling in his

right shoulder. He also had decreased range of motion in both the right shoulder and cervical spine. 

Mr. Ashley was treated by Behrooz Tohidi, M.D., on January 31, 2018. Dr. Tohidi

indicated that he found tenderness with range of motion testing in the right shoulder as well as a 

positive impingement test. Dr. Tohidi opined that the MRI was not clear enough and that Mr. 

Ashley’s symptoms seemed to be related to the infraspinatus or supraspinatus tendon. He 

diagnosed right shoulder impingement syndrome. Dr. Tohidi administered an injection into the 

right shoulder the following day. Mr. Ashley returned on February 9, 2018, and reported that his 

shoulder pain, numbness, and tingling had returned. He also reported the new symptom of a pulling 

sensation in his shoulder when he moved his head back and forth. Dr. Tohidi opined that Mr. 

Ashley had both right shoulder and cervical injuries. He assessed right shoulder impingement 

syndrome and cervical disc displacement. 

Prasadarao Mukkamala, M.D., performed an independent medical evaluation on February 

27, 2018, in which he noted slight range of motion deficits in the right shoulder. Dr. Mukkamala 

diagnosed right shoulder contusion and opined that Mr. Ashley had reached maximum medical 

improvement. He assessed 2% whole person impairment for the right shoulder. 

On March 1, 2018, a cervical MRI was performed and showed large disc bulges at C5-6 

and C6-7 causing mild spinal canal stenosis due to significant impression on the thecal sac and 

cervical cords. Mr. Ashley returned to Dr. Tohidi on March 8, 2018. Dr. Tohidi indicated that Mr. 

Ashley reported increased numbness and tingling in his shoulder as well as severe pain in his neck 

when moving his head down or back. Dr. Tohidi reviewed the cervical MRI and opined that the 
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C6-7 protruding disc was more than likely traumatically induced and did not appear to be 

degenerative. He further opined that the protruding disc was the result of the compensable injury. 

His diagnoses were right shoulder impingement and cervical disc displacement. He requested the 

conditions be added to the claim.

A March 19, 2018, treatment note by Scott Daffner, M.D., indicates he reviewed Mr. 

Ashley’s medical records and imaging. He found that the MRI showed a disc bulge at C5-6 and a 

small herniation at C6-7. He noted that a cervical x-ray showed degenerative disc changes at 

multiple levels. Dr. Daffner diagnosed cervical degenerative disc disease with disc bulging, right 

rotator cuff strain/tendinopathy, and right biceps tendonitis. Dr. Daffner opined that the C6-7 disc 

bulge could be the cause of some of the right arm symptoms; however, he found that the majority 

of Mr. Ashley’s right arm symptoms were the result of his right shoulder injury. He stated that it 

was difficult to tell if the cervical MRI findings are work-related, but since Mr. Ashley had no 

symptoms prior to the compensable injury, it is likely the findings are work-related.

On April 11, 2018, Mr. Ashley once again saw Dr. Tohidi. The treatment note that day 

indicates he recommended Mr. Ashley undergo right shoulder surgery. Dr. Tohidi found that Mr. 

Ashley had pain with active movement. He opined that the examination indicated rotator cuff 

pathology or a partial tear of the supraspinatus or infraspinatus tendon. Dr. Tohidi stated that the 

initial diagnosis of shoulder contusion was no longer valid based upon Mr. Ashley’s subsequent 

and current medical findings. 

In a June 22, 2018, supplemental report, Dr. Mukkamala opined that Mr. Ashley did not 

develop right shoulder impingement as a result of his compensable injury. He stated that the 

impingement was the result of crowding in the joint due to degenerative changes. To support his 

opinion, Dr. Mukkamala relied upon the right shoulder MRI, which showed preexisting 

hypertrophic degenerative spurring in the acromioclavicular joint. Dr. Mukkamala stated that the 

compensable injury caused a right shoulder contusion only. Regarding the cervical spine, Dr. 

Mukkamala opined that the disc displacement was not the result of the compensable injury. He 

found that the cervical changes were degenerative in nature and that his opinion as supported by 

the findings of Dr. Daffner, who also saw degenerative changes in the cervical imaging. 

The claims administrator denied the addition of right shoulder impingement syndrome and 

cervical disc displacement as compensable conditions in the claim on April 4, 2018. The Office of 

Judges reversed the decision and added right shoulder impingement syndrome and cervical disc 

displacement to the claim in its September 18, 2018, Order. Regarding the right shoulder 

impingement, the Office of Judges found that the January 16, 2018, right shoulder MRI showed 

mild to moderate impingement. Further, both Drs. Tohidi and Daffner’s clinical examinations were 

positive for right shoulder impingement. The Office of Judges further found that the right shoulder 

impingement was causally related to the compensable injury. Mr. Ashley testified in a deposition 

that he had no right shoulder issues prior to the compensable injury. About five days prior to the 

injury, he underwent a strenuous pre-employment physical, which he passed. Further, both Drs. 

Tohidi and Manchin opined that the right shoulder impingement resulted from the compensable 

injury. The Office of Judges noted that the employer argued that the right shoulder MRI showed 

degenerative changes. The Office of Judges opined that a preexisting condition, in and of itself, 
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does not prevent a claimant from sustaining a new injury to the same body part. Citing Gill v. City 

of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), the Office of Judges noted that if an 

aggravation of a preexisting condition results in a new injury, that new injury may be found 

compensable. The Office of Judge found in this case that Mr. Ashley’s compensable injury resulted 

in a discrete new injury to the right shoulder. It further noted that no preinjury diagnostic imaging 

showed impingement syndrome in the right shoulder. The Office of Judges concluded that the 

opinions of Mr. Ashley’s treating physicians, Drs. Tohidi and Manchin, were more reliable than 

that of Dr. Mukkamala.

In regard to the cervical disc displacement, the Office of Judges concluded that the 

diagnosis is related to the compensable injury. It found that the diagnosis was confirmed by MRI 

imaging. Dr. Tohidi opined that while the C5-6 bulge was due to degenerative disc disease, the 

C6-7 protruding disc was likely the result of trauma causally related to the compensable injury. 

Dr. Daffner also found that the C6-7 disc protrusion was likely the result of the compensable injury. 

Lastly, Dr. Manchin, Mr. Ashley’s treating physician, completed a diagnosis update in which 

opined that the C6-7 disc displacement was the result of the compensable injury. The Office of 

Judge found no reliable medical evidence of record to dispute these physicians’ findings. The 

Office of Judges noted that the employer relied on Dr. Mukkamala’s opinion that the disc 

displacement was the result of degenerative changes. However, the Office of Judges found his 

opinion to be contrary to the weight of the medical evidence. The Office of Judges further 

determined that Mr. Ashley’s one month delay in reporting cervical symptoms did not preclude a 

finding that the cervical disc displacement was compensable. The Office of Judges noted that West 

Virginia Code of State Rules § 85-20-6.6 provides that physicians are often unable to identify all 

compensable injuries immediately following the injury, and this is why diagnosis updates are 

permitted. The Board of Review adopted the findings of fact and conclusions of law of the Office 

of Judges and affirmed its Order on February 22, 2019.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. The weight of the medical evidence indicates that Mr. Ashley

sustained right shoulder impingement as a result of his compensable injury. Prior to the injury, he

had no symptoms or physical limitations in his right shoulder. Following the injury, diagnostic 

imaging showed evidence of impingement syndrome, and physical examinations by Drs. Tohidi 

and Manchin were positive for impingement syndrome. Likewise, cervical disc displacement was 

also properly added to the claim. Drs. Tohidi, Manchin, and Daffner all examined Mr. Ashley and 

determined that he suffered from cervical disc displacement at C6-7 as the result of his workrelated injury. Dr. Mukkamala’s opinion was the only of record to find that Mr. Ashley did not 

develop cervical disc displacement as a result of the compensable injury, and his opinion is not 

supported by the remainder of the evidentiary record. 

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 so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, 

there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review 

is affirmed. 
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 Affirmed.

ISSUED: June 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker 

Justice Evan H. Jenkins

Justice John A. Hutchison