STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

MELVIN WHITTINGTON, November 29, 2016 

Claimant Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0036 (BOR Appeal No. 2050503) 

(Claim No. 2012002631) 

MORTON CONSTRUCTION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Melvin Whittington, by Patrick K. Maroney, his attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Morton Construction, by 

Katherine H. Arritt, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 21, 2015, in 

which the Board affirmed a May 1, 2015, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s July 30, 2014, decision 

denying the request to add bursitis as a compensable component of 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. Whittington, a laborer, was injured in the course of his employment on April 4, 2011, 

when he lifted some lumber. Mr. Whittington saw John D. Crompton, M.D., for treatment on 

May 24, 2011. The diagnosis was listed as rotator cuff tendinitis and bursitis with degeneration 

and a possible partial thickness tear of the shoulder. Dr. Crompton explained to Mr. Whittington 

that his condition was degenerative and chronic in nature. On October 6, 2011, the claims 

administrator held the claim compensable for disorders of bursae and tendons in the right 

shoulder region, unspecified, excluding all pre-existing and/or degenerative and chronic issues. 

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On June 28, 2012, Mr. Whittington saw Paul Bachwitt, M.D., for an independent medical 

evaluation. Dr. Bachwitt determined that the pain Mr. Whittington was experiencing in his left 

shoulder was not connected to the work-related right shoulder injury. He determined that 

maximum medical improvement would not be achieved until the completion of work 

conditioning. 

On March 25, 2014, Dr. Crompton completed a diagnosis update, listing the diagnoses as 

shoulder bursitis and rotator cuff tear. On July 30, 2014, the claims administrator denied the 

addition of bursitis as a compensable component of the claim because it was degenerative and 

chronic in nature. 

On May 1, 2015, the Office of Judges affirmed the decision. It was determined that Mr. 

Whittington failed to meet his burden of proof. Bursitis is a degenerative condition common in 

men of Mr. Whittington’s age. The medical record showed that Mr. Whittington’s bursitis was 

degenerative and chronic in nature. Dr. Crompton explained this to Mr. Whittington when he 

was first diagnosed. The Office of Judges found that none of the documentation submitted by 

Mr. Whittington showed a connection between his bursitis and the work-related injury. The 

preponderance of the evidence demonstrated that Mr. Whittington’s bursitis is a degenerative 

and chronic problem. The Board of Review adopted the findings of fact and conclusions of law 

of the Office of Judges and affirmed its Order on December 21, 2015. 

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

the Board of Review. Mr. Whittington sustained an injury to his right shoulder in the course of 

his employment. He was diagnosed with bursitis, which Dr. Crompton believed to be 

degenerative and chronic in nature. Mr. Whittington failed to submit any medical documentation 

proving the connection between his bursitis and the work-related 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. 

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ISSUED: November 29, 2016 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

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