STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

August 26, 2016
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

GWENDOLYN RAMSEY, 

Claimant Below, Petitioner OF WEST VIRGINIA 

vs.) No. 15-0838	 (BOR Appeal No. 2050201) 

(Claim No. 2012024476) 

LOVED ONES IN-HOME CARE, LLC,
 

& ALLIED NURSING & COMMUNITY SERVICES, LLC,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Gwendolyn Ramsey, by Patrick Maroney, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Loved Ones In-Home Care, LLC, 

& Allied Nursing & Community Services, LLC, by Katherine Arritt and Jeffrey Brannon, its 

attorneys, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated July 30, 2015, in which 

the Board affirmed a January 23, 2015, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s June 27, 2014, decision 

denying a request for authorization of a cervical spine MRI, an NCS/EMG of the left upper 

extremity, left shoulder surgery, a left shoulder subacromial injection, and the use of the 

medication Tramadol. 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. Ramsey injured herself in the course of her employment as an in-home healthcare 

aide on October 24, 2011, when she was transporting a non-mobile patient. Her claim for 

workers’ compensation benefits was held compensable for a left shoulder sprain. Following the 

compensable injury, Ms. Ramsey sought treatment with Marietta Babayev, M.D., who noted that 

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Ms. Ramsey complained of neck and left shoulder pain. She diagnosed Ms. Ramsey with 

adhesive capsulitis of the left shoulder, cervical neuritis, a neck sprain, a left shoulder sprain, a 

partial thickness tear of the infraspinatus tendon, and left bicipital tendonitis. 

Prasadarao Mukkamala, M.D., performed an independent medical evaluation on March 6, 

2013, and authored a report memorializing his findings on March 7, 2013. He diagnosed Ms. 

Ramsey with a left shoulder sprain. Additionally, he noted that a left shoulder MRI performed in 

2012 revealed pre-existing degenerative joint disease. He further noted that the MRI revealed an 

incomplete full-thickness tear of the supraspinatus tendon and a partial-thickness tear of the 

infraspinatus tendon, which he opined could be pre-existing and degenerative in nature. Dr. 

Mukkamala then opined that Ms. Ramsey has reached maximum medical improvement with 

respect to the compensable injury and is not in need of any further treatment. 

By report dated April 2, 2014, Kenneth Fortgang, M.D., performed an age of injury 

analysis utilizing the results of a left shoulder MRI performed approximately four months after 

the compensable injury. Dr. Fortgang noted that the MRI revealed degenerative changes 

throughout the shoulder with an incomplete full thickness tear of the supraspinatus tendon and a 

partial thickness tear of the infraspinatus tendon. He opined that there is no evidence indicating 

that the MRI findings represent a one-time trauma, but rather most likely arise from degeneration 

associated with normal use of the joint. 

Marsha Lee Bailey, M.D., issued an addendum report on May 29, 2014, following her 

May 5, 2014, records review.1 She opined that Ms. Ramsey’s left shoulder pain currently arises 

from internal derangement of the left shoulder, including degenerative joint disease and 

osteoarthrosis, which pre-existed the compensable injury. Additionally, she opined that the 

compensable left shoulder sprain resolved long ago. Finally, Dr. Bailey indicated that she agrees 

with Dr. Mukkamala’s assessment that the supraspinatus and infraspinatus tendon tears could be 

degenerative and pre-existing in nature. 

On June 27, 2014, the claims administrator denied Dr. Babayev’s request for 

authorization of a cervical spine MRI, an NCS/EMG of the left upper extremity, surgical repair 

of the torn tendons in the left shoulder, a left shoulder subacromial injection, and the use of the 

medication Tramadol based upon a finding that the requested treatment is not medically 

reasonable for the treatment of the compensable left shoulder strain.2 In its Order affirming the 

1 Dr. Bailey’s report memorializing her May 5, 2014, records review was not provided to this
 

Court for review.
 

2 Dr. Babayev made numerous requests for authorization of the treatments currently at issue.
 

Although the record is incomplete with respect to these prior requests, it is clear that on February
 

27, 2012, the claims administrator denied a request for authorization of a cervical spine MRI.
 

Additionally, in a decision dated August 19, 2014, the Office of Judges noted that there is no
 

indication that a cervical spine MRI is necessary, as a cervical spine MRI performed in 2000
 

revealed the presence of extensive degenerative changes which were symptomatic at the time.
 

Additionally, the Office of Judges noted in the same decision that the requested left shoulder
 

surgery is aimed solely at treating degenerative changes.
 

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June 27, 2014, claims administrator’s decision, the Office of Judges held that Ms. Ramsey’s 

current need for treatment arises solely from degenerative conditions, which are unrelated to the 

October 24, 2011, injury. The Board of Review affirmed the reasoning and conclusions of the 

Office of Judges in its decision dated July 30, 2015. On appeal, Ms. Ramsey asserts that the 

evidence of record demonstrates that the requested medical treatment is necessary for the 

ongoing treatment of the October 24, 2011, injury. 

The Office of Judges found that there is no evidence indicating that Ms. Ramsey injured 

her cervical spine as a result of the October 24, 2011, incident, and noted that the record 

indicates that she began experiencing symptoms associated with degenerative changes in the 

cervical spine as early as 2008. Additionally, the Office of Judges found that the record reveals 

that Ms. Ramsey began experiencing degenerative changes in both shoulders prior to the October 

24, 2011, injury. The Office of Judges then concluded that the evidence of record demonstrates 

that the need for the requested medical treatments likely arises from pre-existing degenerative 

changes in the cervical spine and left shoulder. 

We agree with the reasoning and conclusions of the Office of Judges as affirmed by the 

Board of Review. The record clearly demonstrates that Ms. Ramsey has extensive degenerative 

changes in both the cervical spine and left shoulder. Additionally, treatment for the cervical spine 

cannot be authorized because the cervical spine is not a compensable body part in the instant 

claim. Further, the claims administrator previously denied a prior request for authorization of a 

cervical spine MRI. Finally, as was previously noted, in a prior decision the Office of Judges 

found that the current treatment for the left shoulder is aimed at treating degenerative changes 

rather than 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: August 26, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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