### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED MICHAEL SHAEFFER, May 7, 2018

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### Claimant Below, Petitioner

vs.) No. 17-0895 (BOR Appeal No. 2051845) (Claim No. 2016024033)

MURRAY AMERICAN ENERGY, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Michael Shaeffer, by Robert L. Stu ltz, his attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. Murray Amer ican Energy, Inc., by Denise D. Pentino, its attorney, filed a timely response.

The issue on appeal is the addition of righ t shoulder osteoarthri tis to the claim and authorization of physical thera py. In three separate Orders dated September 28, 2016, the claims administrator denied a request to add right shoulder osteoarthrit is as a compensable condition in the claim, denied right shoulder physical ther apy, and closed the claim for temporary total disability benefits 1 . The Office of Judges reversed the d ecision closing the claim for temporary total disability benefits and affirmed the remainde r of the claims administ rator’s decisions in its February 22, 2017, Order. The Order was reversed, in part, and affirmed, in part, by the Board of Review on September 7, 2017. The Bo ard of Review reversed the Office of Judges’ Order insofar as it granted temporary total disability benefits. The Court has carefully reviewed the records, written arguments, and appendices contai ned 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

1 The decision closing the claim for temporary total disability benefits is not on appeal before this

Court.

1Mr. Shaeffer, a coal miner, was injured in the course of his em ployment on March 15, 2016, when he tripped, fell, and caught himself with his right arm. Treatment notes from Wheeling Hospital emergency department that day indicate Mr. Shaeffer wa s treated for a work injury to his right shoulder a nd lower back. An x-ray of the right shoulder showed advanced arthritis of the glenohumeral join t. X-rays of the lumb ar spine showed arth ritic changes at the sacroiliac joint and degenerative disc disease. Mr. Shaeffer wa s diagnosed with acute right shoulder injury and acute back strain.

Prior to the compensable injury, Mr. Shae ffer had a long histor y of right shoulder problems. Treatment notes from Ford City Family Practice dated August 13, 2003, indicate Mr. Shaeffer was treated for right shoulder pain. On August 9, 2008, Bert Hepner, D.O., indicated in a treatment note that Mr. Shaeffer injured his left shoulder while lifting we ights and also suffered from bilateral shoulder pain. There was radiographic evidence of degenerative changes of the acromioclavicular joint and glenohumeral joint. The diagnosis was sprain/strain of the left shoulder acromioclavicular joint with subacr omial bursitis. August 1, 2011, treatment notes by William McCann, D.O., indicate Mr. Shaeffer was again treated for right shoulder pain. On August 31, 2011, Dr. Hepner noted that Mr. Shaeffer was seen for right shoulder pain. He was diagnosed with advanced degene rative joint disease of the right shoulder. A treatment note by Ford City Family Practice on April 10, 2012, indicates Mr. Shaeffer was diagnosed with osteoarthritis and degenerative joint disease. Finally, Dr. Hepner diagnosed advanced degenerative joint disease of th e right shoulder on June 22, 2012.

Following the compensable injury, a treatmen t note by Ross Tennant, nurse practitioner at Wheeling Hospital, indicates Mr. Shaeffer re turned on March 25, 2 016, with right shoulder pain, intermittent numbness, and tingling in the hand. Range of motion had slightly improved but the shoulder was still weak. The diagnosis was right shoulder sprain, and a right shoulder MRI was recommended. The MRI was performed on March 30, 2016, and showed severe osteoarthritis with degenerative tearing of the glenoid labrum and a small glenohumeral joint

effusion. It also showed acromiocl avicular joint degenerative ch anges with mild bursitis. Mr. Tennant reviewed the MRI, referre d the claimant to an orthopedist , and stated that he remained unable to work on April 1, 2016.

A May 5, 2016, treatment note by Nathan Fo rmaini, D.O., indicates Mr. Shaeffer reported some minor right shoulde r pain in the past; however, si nce the compensable injury, he had experienced significant pain. Dr. Formaini noted that Mr. Sh aeffer had a known diagnosis of osteoarthritis in the right shoulde r but that this was the first time he has had major problems with it. The MRI was reviewed and interpreted as sh owing severe degenerative changes, complete obliteration of the joint space, subchondral sclerosis, osteophyt e formation, partial tearing of the supraspinatus and infraspinatus, joint effusion, a nd bicep tendon partial t ear with tenosynovitis. Dr. Formaini diagnosed severe glenohumeral os teoarthritis exacerba tion and a decline in functional status following a work injury . He recommended a right shoulder total arthroplasty/replacement which he perfor med on May 19, 2016. The pre and post-operative diagnoses were severe right shoulder glenohumeral osteoarthritis and right shoulder biceps tear with tenosynovitis.

2Mr. Shaeffer testified in a deposition on June 16, 2016, that he was carrying a bundle of six foot long bolts when he tri pped and caught himself w ith his right arm. He stated that he felt pain instantly in his right shoulder and went to Wheeling Hospital. He underwent right shoulder surgery on May 19, 2016, and was currently in physical therapy. Mr. Shaeffer denied any prior right shoulder injuries but admitted to prior aches and pains.

The Office of Judges held the claim compensa ble for right shoulder sprain and lumbar sprain. On August 24, 2016, Dr. Formaini complete d a diagnosis update in which he requested that right shoulder osteoarthritis be added to the claim. He stated that prior to the compensable injury, Mr. Shaeffer had osteoarthritis in the ri ght shoulder without significant limitations, and he did not miss work. After the compensable injury, he has experienced worsening pain and loss of range of motion. Dr. Formaini stated on an a ttending physician benefit form that Mr. Shaeffer was not at maximum medical impr ovement and would be temporarily and totally disabled from March 15, 2016, through November 11, 2016.

Ronald Fadel, M.D., completed a physician review on December 4, 2016, in which he opined that Mr. Shaeffer’s compensable injury di d not cause the developm ent of right shoulder

osteoarthritis. Dr. Fadel found that there was no objective post-injury evidence to show an aggravation of a preexisting condi tion because the symptoms of pa in and limited range of motion were present both before and after the injur y. Dr. Fadel believed Mr. Shaeffer sustained an exacerbation or flare up of right shoulder pain, dysfunction, and range of motion limitations as he had in the past. He found that it was impossibl e to conclude whether Mr. Shaeffer sustained a permanent aggravation or worsening of his pree xisting right shoulder di sease because the usual course of conservative treatment was skipped in favor of su rgery. Dr. Fadel did believe, however, that Mr. Shaeffer was a candidate for th e surgery as far back as 2011. He also stated

that if there was an exacerbati on of his preexisting osteoarthritis , Mr. Shaeffer would have been temporarily and totally disabled fo r four to twelve weeks. He found that he would not have been temporarily and totally disabled past Septembe r 28, 2016, if he had received palliative treatment for the compensable sprain/strain only.

On September 28, 2016, the claims administrato r denied a request to add right shoulder osteoarthritis as a compensable condition in the claim, denied right shoulder physical therapy two times a week for three months, and closed th e claim for temporary total disability benefits. On February 22, 2017, the Office of Judges affirm ed the claims administrator’s decisions denying the addition of right shoul der osteoarthritis a nd authorization for physical therapy. The Office of Judges reversed the claims administra tor’s decision closing the claim for temporary total disability benefits and gr anted benefits from the date Mr . Shaeffer stopped receiving them until the claim was closed using proper procedure.

The Office of Judges found that in regards to the right shoulder osteoarthritis, Mr. Shaeffer had symptoms dating back to at least August 13, 2003. In 2008, he had bilateral shoulder pain. In 2011, he was di agnosed with right shoulder seve re degenerative joint disease with obliteration of the joint sp ace and osteophyte formation. In 2012, he was again diagnosed with severe degenerative join t disease in the righ t shoulder. The Office of Judges further determined that x-rays taken on the date of the compensable injury showed advanced

3osteoarthritis of the right shoulder. An MR I taken two weeks later also showed severe osteoarthritis as well as degenera tive tearing and changes. Lastly, the Office of Judges noted that Dr. Formaini noted on May 5, 2016, and August 24, 2016, that Mr. Shaeffer had osteoarthritis prior to the compensable injury. The Office of Judges concluded, pursuant to Gill v. City of

Charleston , 236 W.Va. 737, 783 S.E.2d 857 (2 016), that right shoulder osteoarthritis should not be added to the claim because it preexisted th e compensable injury and was not a discreet new injury.

In regard to physical thera py, the Office of Judges found that the claimant failed to provide sufficient evidence showing the physical therapy is necessary for the compensable injury. The physical therapy was requested follow ing the right shoulder total arthroplasty and Mr. Shaeffer failed to prove by a preponderance of the evidence that the right shoulder surgery was necessary for the compensa ble right shoulder sprain.

In regard to temporary total disability, the Office of Judges reversed the claims

administrator’s decision because the claims ad ministrator failed to fo llow proper procedural mandates for closing a claim. Specifically, it fail ed to allow Mr. Shaeffer a reasonable period of

time to introduce medical evidence that he was s till temporarily and totally disabled. The Office of Judges therefore reversed the claims admini strator’s decision and granted temporary total disability benefits from the date the claim wa s improperly closed until it could be properly

closed.

On September 7, 2017, the Board of Review affi rmed the Office of Judges’ Order insofar as it denied osteoarthritis as a compensable co ndition and denied physical therapy. The Board of Review reversed the Office of Judges’ Order inso far as it authorized temporary total disability benefits until the claim was properly closed. The Board of Review found that though proper procedure was not followed, Mr. Shaeffer is not entitled to temporary total disability benefits under West Virginia Code 23-4-1c(c) (2009). The medical evidence did not justify the payment of such benefits after September 28, 2016.

After review, we agree with the reasoning an d conclusions of the Board of Review. The claim has been held compensable for lumbar and right shoulder sprains/strains only. Mr. Shaeffer clearly suffered from osteoarthritis pr ior to the compensable injury. The condition was therefore properly denied. Physical therapy for that same non-compensable condition was also properly denied.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

4ISSUED: May 7, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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