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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

MARIA R. SHELTON,

Claimant Below, Petitioner

vs.) No. 18-0968 (BOR Appeal Nos. 2052760 and 2052940)

(Claim No. 2016029340)

DEEPWELL ENERGY SERVICES, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Maria R. Shelton, by Counsel Robert L. Stultz, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). Deepwell Energy 

Services, by Counsel Jeffrey B. Brannon, filed a timely response.

The issues on appeal are medical benefits, temporary total disability, additional 

compensable conditions and travel reimbursement. The claims administrator denied the addition 

of right hip arthritis to the claim on July 10, 2017. On September 19, 2017, it denied a reopening 

of the claim for temporary total disability benefits. On October 2, 2017, the claims administrator 

denied a request for travel reimbursement. The Office of Judges affirmed the decisions in its March 

16, 2018, Order. The Order was affirmed by the Board of Review on September 26, 2018. The 

claims administrator denied a right psoas tendon injection and greater trochanteric bursa injection 

on September 18, 2017. On September 19, 2017, it denied physical therapy. On February 21, 2018, 

the claims administrator denied an ultrasound guided tendon injection of the right hip. The Office 

of Judges affirmed the decisions in its May 22, 2018, Order. The Order was affirmed by the Board 

of Review on September 26, 2018. 

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. 

Ms. Shelton, a laborer, was injured in the course of her employment on May 11, 2016, 

when she fell from the bed of her truck. The Employees’ and Physicians’ Report of Injury indicates 

FILED

November 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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she injured her right side in the fall. She was treated at Stonewall Jackson Memorial Hospital and 

diagnosed with right shoulder sprain, right rib cage contusion, and right hip contusion. It was noted 

that she had preexisting right shoulder pain for which she was currently undergoing treatment. Ms. 

Shelton followed up with Freddie Persinger, D.O., on May 16, 2016. After examination, Dr. 

Persinger diagnosed right arm contusion and subacromial impingement of the right shoulder. Ms. 

Shelton was to be off of work for two weeks and to do home exercises. On May 26, 2016, she was 

seen for follow up, and Dr. Persinger diagnosed right groin strain. 

A right shoulder MRI was performed on June 25, 2016, and showed degenerative changes 

in the acromioclavicular joint with small osteophytes that slightly impinged on the supraspinatus 

tendon. It also revealed tendinopathy at the insertion of the supraspinatus tendon. Treatment notes 

from Country Roads Physical Therapy indicate Ms. Shelton was to have physical therapy for 

twelve weeks. It was noted that her shoulder pain began in November of 2015 and worsened after 

her May 11, 2016, fall. 

On April 26, 2016, Ms. Shelton sought treatment from Chad Poage, D.O. He indicated that 

Ms. Shelton saw his partner, Chad Micucci, M.D., the week prior. Dr. Micucci recommended a 

diagnostic arthropathy of the right shoulder. Ms. Shelton continued to have pain in the shoulder 

that limited her range of motion. Physical therapy worsened the pain. Dr. Poage diagnosed rotator 

cuff tendinopathy in the right shoulder. On August 3, 2016, Dr. Poage performed a diagnostic 

arthroscopy of Ms. Shelton’s right shoulder. He performed extensive debridement of the 

glenohumeral and rotator cuff departments along with subacromial decompression for a partial 

rotator cuff tear and impingement syndrome. The diagnosis was listed as rotator cuff tear or rupture 

of the right shoulder, not specified as traumatic. 

Ms. Shelton testified in an August 24, 2016, deposition that physical therapy alleviated 

some of her right hip pain but she was still unable to squat. She stated that she had no right hip 

pain prior to the compensable injury. She was undergoing treatment for her right shoulder at the 

time of her injury, but she missed no work for it. After her compensable fall, her right shoulder 

pain increased and she was unable to use her shoulder. She has not returned to work since her 

injury. Ms. Shelton stated that she was not on any medication for her right shoulder or hip prior to 

the compensable injury. She testified that she underwent shoulder surgery by Dr. Poage, and all 

treatment with him was billed under her regular insurance. 

A September 13, 2016, treatment note by Dr. Poage indicates Ms. Shelton was doing well 

post-surgery and her shoulder was improving. She still had right groin pain as well as popping and 

catching in the right hip. The diagnoses were listed as status post right shoulder arthroscopy and 

ongoing right hip pain with possible labral tear. A right hip MRI was performed on September 28, 

2016, and showed an oblique tear of the anterior superior right hip labrum. Ms. Shelton returned 

to Dr. Poage on October 13, 2016, with complaints of significant groin pain and right-sided genital 

pain with movement. The pain had been present for six months and rendered Ms. Shelton unable 

to do normal activities. Dr. Poage noted that the MRI showed a labral tear. He referred her to a hip 

arthroscopy specialist. 
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On November 11, 2016, Jonathan Luchs, M.D., performed an age of injury analysis of the 

June 25, 2016, right shoulder MRI. Dr. Luchs noted that the MRI reader found degenerative 

changes of the acromioclavicular joint and tendinopathy at the insertion of the supraspinatus 

tendon. Dr. Luchs concurred and additionally stated that he saw no evidence of tears. He found 

acromioclavicular joint arthropathy and subacromial impingement resulting in tendinosis and 

bursitis. He concluded that the MRI showed findings of subacromial impingement resulting in 

supraspinatus tendinosis and subdeltoid bursitis. He opined that the conditions were chronic. Dr. 

Luchs also performed an age of injury analysis of the June 25, 2016, right hip MRI. He opined that 

the MRI showed bilateral greater trochanteric bursitis, which is a chronic finding. On March 14, 

2017, the Office of Judges reversed a claims administrator decision and held the claim 

compensable for right shoulder sprain, right rib cage contusion, and right hip sprain. 

Ms. Shelton sought treatment from Justin Brewer, PA-C, and Christopher Courtney, D.O., 

on April 10, 2017. The treatment note indicates she was seen for right hip and groin pain. It was 

noted that she underwent right hip labral repair and resection in December of 2016. Ms. Shelton

reported that she now has right groin pain and right leg pain. Mr. Brewer assessed right labral tear 

and femoral acetabular impingement. Injections and physical therapy were recommended. Mr. 

Brewer requested authorization for a right hip intra-articular injection and physical therapy for a 

right acetabular labrum tear, right hip arthritis, right hip pain, and antalgic gait. On April 18, 2017, 

Mr. Brewer and Dr. Courtney requested that right labrum tear, right hip arthritis, and right hip pain 

be added as compensable diagnoses in the claim. A right hip intra-articular joint injection was 

given on June 2, 2017, for the diagnoses of right hip pain, tear of the right acetabular labrum, and 

right hip arthritis. 

In a June 26, 2017, Order, the Office of Judges reversed an April 7, 2017, claims 

administrator’s decision which denied referral for intra-articular injection of the right hip and 

remanded the claim pending a ruling on Dr. Courtney’s April 19, 2017, diagnosis update. It also 

affirmed a denial of physical therapy because right rotator cuff tendonitis and bursitis are not 

compensable conditions. The Office of Judges reversed an April 11, 2017, claims administrator’s 

decision, which denied referral for physical therapy for the diagnoses of tear of the right acetabular 

labrum, right hip arthritis, right hip pain, and antalgic gait, and remanded the case pending a ruling 

on Dr. Courtney’s diagnosis update. Lastly, the Office of Judges affirmed the denial of the addition 

of other lesions of the right shoulder, right hip pain, and right shoulder pain to the claim. The 

claims administrator denied the addition of right hip arthritis to the claim on July 10, 2017.

On July 28, 2017, Ms. Shelton returned to Dr. Courtney who noted that her pain was greatly 

improved by a hip injection for right hip arthritis. He released her to return to work without 

restrictions. Ms. Shelton completed a claim reopening application on August 16, 2017, requesting 

temporary total disability benefits from August 16, 2017, through November 20, 2017. Dr. 

Courtney listed the diagnoses as right hip injury, labral tear, psoas tendonitis, and greater 

trochanteric bursitis. He recommended a right hip injection, psoas tendon injection, greater 

trochanteric injection, and physical therapy. He stated that Ms. Shelton could return to work on 

light duty with no standing, walking, or prolonged sitting. He indicated she has experienced a 

progression of her right hip pain as well as weakness and tendinitis flare up. 
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The claims administrator denied a right psoas tendon injection and a greater trochanteric

bursa injection on September 18, 2017. On September 19, 2017, it denied reopening of the claim 

for temporary total disability benefits. In a separate decision that day, the claims administrator also 

denied physical therapy. A request for travel reimbursement was denied on October 2, 2017.

An independent medical evaluation was performed by David Soulsby, M.D., on December 

12, 2017. He diagnosed right shoulder impingement syndrome with partial thickness tear of the 

supraspinatus tendon, right hip labral tear, and osteoarthritis in the right hip. He found Ms. Shelton

had reached maximum medical improvement for the compensable injuries and assessed 4% right 

shoulder impairment. 

A February 16, 2018, treatment note by Mr. Brewer and Dr. Courtney indicates Ms. Shelton 

was seen for right hip pain. She was having difficulty walking, standing, sitting, and driving. It 

was noted that her right hip arthroscopy showed mild to moderate degenerative changes. Ms. 

Shelton reported ongoing symptoms despite surgery and that she attempted to return to work but 

was unsuccessful due to hip pain. The diagnoses were listed as right hip pain, right psoas

tendonitis, right hip arthritis, and right acetabular labrum tear. It was recommended that she 

undergo physical therapy and receive hip joint injections as well as a trial return to work program. 

In a February 16, 2018, letter, Mr. Brewer stated that Ms. Shelton is able to return to work. 

She has psoastendonitis and right hip joint pain. He stated that her treatment had not been approved 

and she was therefore not improving. Ms. Shelton could continue light duty work. Mr. Brewer 

stated that he still recommends physical therapy, psoas tendon injections, and right hip injections. 

The claims administrator denied ultrasound guided tendon injection of the right hip on February 

21, 2018. 

The Office of Judges affirmed the July 10, 2017; September 19, 2017; and October 2, 2017,

claims administrator’s decisions in its March 16, 2018, Order. It determined that in a prior decision 

dated March 14, 2017, it held that Ms. Shelton failed to submit sufficient evidence to show that 

right labrum tear, right acetabular labrum tear, and right hip pain should be added to the claim. 

The claim was held compensable for right shoulder sprain, right rib cage contusion, and right hip 

sprain. It determined in the instant case that Ms. Shelton submitted no new evidence demonstrating 

that she sustained injuries beyond the conditions already held compensable. Dr. Courtney stated 

in a treatment note that she had preexisting osteoarthritis and that she was experiencing a flare up 

of her preexisting right hip arthritis due to treatment for a noncompensable condition. The Office 

of Judges held that right hip arthritis should not be added to the claim. 

Regarding travel reimbursement, the Office of Judges found that Ms. Shelton did not 

submit any travel reimbursements. Additionally, Dr. Courtney, the physician whom she was 

traveling to see, treated her for post hip arthroscopy for labral debridement and arthritis. Neither 

condition is compensable in this claim, and reimbursement for travel expenses is therefore not 

proper. Lastly, the Office of Judges determined that the claim should not be reopened for

temporary total disability benefits. Dr. Courtney requested benefits from August 16, 2017, through 

November 20, 2017, for the conditions of labral tear, psoas tendonitis, and greater trochanteric

bursitis. None of these conditions are compensable. Further, Ms. Shelton underwent right hip labral 
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debridement surgery. This constituted a subsequent intervening event, and any disability related 

to the surgery is not compensable. The Office of Judges concluded that Ms. Shelton failed to show 

proper cause for reopening her claim on a temporary total disability basis. 

In its May 22, 2018, Order, the Office of Judges affirmed the claims administrator’s 

September 18, 2017, decision denying right psoas tendon injections and greater trochanteric bursa 

injections; affirmed the claims administrator’s September 19, 2017, decision denying physical 

therapy; and affirmed the February 21, 2018, decision denying ultrasound guided right hip tendon 

injections. The Office of Judges determined that the claim was held compensable for right shoulder 

sprain, right rib cage contusion, and right hip sprain. None of the requested treatments are aimed 

at treating these compensable conditions. The Office of Judges found that the treatments were 

requested for a right labrum tear, right hip pain, right hip psoas tendonitis, and other soft tissue 

disorders related to the use/overuse of the shoulder. The Office of Judges noted that Ms. Shelton

also had preexisting arthrosis of the hip, which was denied as a compensable condition in the claim. 

Because the requested medical treatment is aimed at treating noncompensable conditions, the 

claims administrator’s denials of treatment were affirmed. The Board of Review adopted the 

findings of fact and conclusions of law of the Office of Judges and affirmed its Orders in two 

separate decisions dated September 28, 2016. 

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

affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1 (2018), employees

who receive injuries in the course of and as a result of their covered employment are entitled to 

benefits. For an injury to be compensable it must be a personal injury that was received in the 

course of employment, and it must have resulted from that employment. Syl. Pt. 1, Barnett v. State 

Workmen’s Compensation Commissioner, 153 W. Va. 796, 796, 172 S.E.2d 698, 699 (1970). Ms. 

Shelton has failed to submit sufficient evidence to show that right hip arthritis developed in the 

course of and resulting from her employment. Additionally, West Virginia Code § 23-4-3(a)(1) 

(2005) provides that the claims administrator must provide medically related and reasonably 

required sums for healthcare services, rehabilitation services, durable medical and other goods, 

and other supplies. We find that the requested medical treatment and temporary total disability 

benefits are aimed at treating noncompensable conditions and were also properly denied. 

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 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison