STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 6, 2014 

RORY L. PERRY II, CLERK 

ERIC ZIMMERMAN, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1527 (BOR Appeal No. 2047274) 

(Claim No. 2011034680) 

COALFIELD SERVICES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Eric Zimmerman, by Reginald Henry, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Coalfield Services, Inc., by Daniel 

Murdock, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 28, 2012, in 

which the Board affirmed a May 24, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 26, 2011, 

decision which denied authorization of left shoulder surgery. 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. Zimmerman, a construction worker, injured his left shoulder in the course of his 

employment on April 20, 2011, when he slipped on gravel and fell over a bank. A May 12, 2011, 

left shoulder MRI revealed possible subacromial/subdeltoid bursitis. There was no obvious 

internal derangement of the shoulder. The claim was held compensable for left shoulder sprain 

and rotator cuff sprain. Mr. Zimmerman’s treating physician, Nathan Doctry, M.D., determined 

in July of 2011 that Mr. Zimmerman had sustained internal derangement of his left shoulder 

most likely with a superior labrum anterior and posterior tear. He recommended arthroscopic 

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surgery. In a letter dated December 13, 2011, Dr. Doctry clarified that although an MRI showed 

no indication of internal derangement, such diagnostic tests are not definitive. He stated that 

because Mr. Zimmerman’s symptoms had persisted, the time for conservative treatment had 

passed. Mr. Zimmerman was found not to be at maximum medical improvement, and surgery 

was determined to be necessary to evaluate the shoulder’s condition in order to avoid 

overlooking a condition that could cause progressive deterioration if left untreated. 

Mr. Zimmerman was evaluated by Paul Bachwitt, M.D., in September of 2011. In that 

independent medical evaluation, Dr. Bachwitt found that maximum medical improvement had 

been reached. He diagnosed a left shoulder sprain/strain and opined that surgery was unnecessary 

to treat the compensable injury. He stated that Mr. Zimmerman could return to work without 

restrictions. Prasadarao Mukkamala, M.D., agreed with Dr. Bachwitt in an independent medical 

evaluation in December of 2011. Dr. Mukkamala also found Mr. Zimmerman had sustained a 

left shoulder sprain, that he had reached maximum medical improvement, and that surgery was 

not necessary to treat the injury. 

The claims administrator denied a request for left shoulder surgery in its October 26, 

2011, decision. The Office of Judges affirmed the decision in its May 24, 2012, Order. It 

determined that Dr. Doctry’s diagnosis of internal derangement with a superior labrum anterior 

and posterior tear is not supported by diagnostic testing. Drs. Mukkamala and Bachwitt both 

evaluated Mr. Zimmerman and found that he had reached maximum medical improvement. They 

also opined that surgery was unnecessary in this case. The Office of Judges therefore held that 

diagnostic testing failed to support the authorization of the requested treatment. 

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 28, 2012, decision. This Court agrees with the 

reasoning and conclusions of the Board of Review. Diagnostic testing failed to establish that left 

shoulder surgery is medically related and reasonably required to treat the compensable injury in 

this case. 

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 Allen H. Loughry II 

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DISSENTING: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

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