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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

KIMBERLY A. LOWMAN,

Claimant Below, Petitioner

vs.) No. 20-0559 (BOR Appeal No. 2055205)

(Claim No. 2018009136)

 

GABRIEL BROTHERS, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Kimberly A. Lowman, by Counsel Robert L. Stultz, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review (“Board of Review”). Gabriel Brothers, 

Inc., by Counsel Maureen Kowalski, filed a timely response.

The issue on appeal is temporary total disability. The claims administrator closed the claim 

for temporary total disability benefits on May 20, 2019. The Workers’ Compensation Office of 

Judges (“Office of Judges”) affirmed the decision in its February 21, 2020, Order. The Order was 

affirmed by the Board of Review on July 2, 2020.

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. 

The standard of review applicable to this Court’s consideration of workers’ compensation 

appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:

(b) In reviewing a decision of the board of review, the supreme court of 

appeals shall consider the record provided by the board and give deference to the 

board’s findings, reasoning and conclusions . . . .

(c) If the decision of the board represents an affirmation of a prior ruling by 

both the commission and the office of judges that was entered on the same issue in 

FILED

November 5, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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the same claim, the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear violation of Constitutional 

or statutory provision, is clearly the result of erroneous conclusions of law, or is 

based upon the board’s material misstatement or mischaracterization of particular 

components of the evidentiary record. The court may not conduct a de novo reweighing of the evidentiary record. 

See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64 

(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 

230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions 

of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of 

Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). 

Ms. Lowman, a pricer, injured her right upper extremity at work on October 12, 2017. The 

Employees’ and Physicians’ Report of Injury indicates Ms. Lowman was injured while unloading 

boxes of clothes. The injury was listed as bilateral arm, pectoral, and trap muscle strain. The claims 

administrator initially rejected the claim; however, the Office of Judges reversed the decision on 

April 18, 2018, and held the claim compensable for right distal rotator cuff tear and right upper 

extremity strain. 

Ms. Lowman sought treatment for the compensable injury from P. Kent Thrush on June 

22, 2018. Dr. Thrush stated that he previously recommended a one-time orthopedic consultation. 

If surgery was not recommended, Ms. Lowman would be at maximum medical improvement. 

Joshua Sykes, M.D., an orthopedist, evaluated Ms. Lowman on August 28, 2018, and diagnosed 

glenohumeral arthritis and biceps tendonitis. He opined that the majority of her pain was the result 

of arthritis and tendonitis and recommended an injection. 

Ms. Lowman returned to Dr. Thrush on October 8, 2018. Dr. Thrush stated that Ms. 

Lowman saw Dr. Sykes and surgery was not recommended. Dr. Thrush agreed with the opinion 

and opined that Ms. Lowman had reached maximum medical improvement. On October 18, 2018, 

Dr. Thrush evaluated Ms. Lowman and found 3% right shoulder impairment. Dr. Sykes again 

diagnosed right shoulder glenohumeral arthritis and biceps tendonitis on November 27, 2018. Dr. 

Sykes opined that Ms. Lowman likely had preexisting osteoarthritis in the right shoulder. The 

biceps tendon injury, however, was likely the result of the compensable injury. Dr. Sykes stated 

that the main source of Ms. Lowman’s pain was the biceps. He recommended an injection. 

On November 29, 2018, Dr. Thrush stated that Ms. Lowman had returned to Dr. Sykes and 

underwent a right shoulder injection, which worsened her symptoms. Dr. Thrush reiterated that 

Ms. Lowman had reached maximum medical improvement. Dr. Sykes performed a right shoulder 

injection for the diagnoses of primary osteoarthritis and glenohumeral arthritis on February 22, 

2019. Ms. Lowman returned to Dr. Thrush on April 4, 2019, and Dr. Thrush continued to find Ms. 

Lowman at maximum medical improvement unless Dr. Sykes recommended additional treatment. 

Dr. Thrush stated that Ms. Lowman was likely unable to return to her previous position due to the 

labor involved. She could, however, perform sedentary or light duty work. 
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Dr. Sykes stated in an April 22, 2019, treatment note that the injection performed on 

February 22, 2019, did not improve Ms. Lowman’s symptoms. Dr. Sykes diagnosed right shoulder 

glenohumeral arthritis, biceps tendonitis, and rotator cuff tear of unspecified extent. Dr. Sykes 

requested an MRI for diagnostics and surgical planning. The claims administrator closed the claim 

for temporary total disability benefits on May 20, 2019. On May 29, 2019, Dr. Thrush opined that 

a new MRI would be reasonable and necessary treatment for the compensable injury. A right 

shoulder MRI was approved by the claims administrator on June 7, 2019.

In a June 10, 2019, treatment note, Dr. Thrush stated that if Dr. Sykes recommended 

surgery based on the new MRI, Ms. Lowman would require further temporary total disability 

benefits. However, if Dr. Sykes did not recommend surgery, Ms. Lowman would be at maximum 

medical improvement. A right shoulder MRI was performed on June 25, 2019. It showed mid to 

moderate degenerative changes but no indication of a rotator cuff tear. There was evidence of a 

labral tear. 

The Office of Judges affirmed the claims administrator’s closure of the claim for temporary 

total disability benefits in its February 21, 2020, Order. It noted that West Virginia Code of State 

Rules § 85-20-3.9 states that maximum medical improvement is when a condition has become 

static or stabilized and is unlikely to change in spite of additional medical or surgical treatment. 

The claim was first closed for temporary total disability benefits on October 10, 2018. The decision 

was reversed by the Office of Judges, which found that Ms. Lowman was receiving authorized 

treatment. That treatment, injections, worsened Ms. Lowman’s symptoms. Therefore, Ms. 

Lowman’s condition was not static, and she had not reached maximum medical improvement. The 

claim was again closed for temporary total disability benefits on May 20, 2019. The Office of 

Judges concluded that there is no evidence in the current litigation that Ms. Lowman’s condition 

has worsened. Dr. Thrush has repeatedly found that Ms. Lowman has reached her maximum 

medical improvement. On June 10, 2019, Dr. Thrush stated that if Dr. Sykes did not recommend 

surgery, Ms. Lowman would be at maximum medical improvement. Dr. Sykes stated in his April 

22, 2019, reported that a new MRI was needed for diagnostic and preoperative planning. The MRI 

was performed on June 25, 2019; however, no additional records from Dr. Sykes were introduced. 

The Office of Judges stated that even if surgery was recommended, it would not be aimed 

at treating the compensable injury. The claim was held compensable for distal rotator cuff tear and 

right shoulder strain. The June 25, 2019, MRI showed no evidence of a rotator cuff tear. The Office 

of Judges therefore found that surgery is not necessary and, based on Dr. Thrush’s records, Ms. 

Lowman has reached maximum medical improvement. The Office of Judges concluded that Ms. 

Lowman submitted no reliable medical evidence refuting that she has reached maximum medical 

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

Office of Judges and affirmed its Order on July 2, 2020. 

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 § 23-4-7a, temporary total 

disability benefits will cease when the claimant has reached maximum medical improvement, has 

been released to return to work, or has returned to work, whichever occurs first. Ms. Lowman has 

been found to be at maximum medical improvement on several occasions by Dr. Thrush. Dr. 
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Thrush stated in his most recent treatment note that if Dr. Sykes did not recommend surgery, Ms. 

Lowman would be at maximum medical improvement. In his latest treatment note, Dr. Sykes 

stated that an MRI was needed for preoperative planning. However, there are no further treatment 

records from Dr. Sykes. Further, the only compensable condition for which Dr. Sykes was treating 

Ms. Lowman was right shoulder rotator cuff tear. The MRI showed no evidence of such injury. 

Therefore, even if Dr. Sykes recommended surgery, it would not be aimed at treating a 

compensable condition in the claim. 

 Affirmed.

ISSUED: November 5, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton