### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED

August 24, 2017 

### MARKITA MILLER,

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS 

### Claimant Below, Petitioner

OF WEST VIRGINIA



### vs.) No. 16-0742 (BOR Appeal No. 2051116)

(Claim No. 2010119069)

CHARLESTON JOBS CORPS CENTER,

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Markita Miller, by Edwin H. Pancake, her attorney, appeals the decision of the

West Virginia Workers’ Compensation Board of Review. Charleston Jobs Corps Center, by

James W. Heslep, its attorney, filed a timely response.

The issue on appeal is whether pain management treatment should be authorized for Ms.

Miller’s compensable injury. This appeal originated from the August 9, 2013, claims

administrator’s decision denying pain management for the condition of re flex sympathetic

dystrophy as it is not an allowed condition in the claim. In its February 2, 2016, Order, the

Workers’ Compensation Office of Judges affirmed the decision. The Board of Review’s Final

Order dated July 6, 2016, affirmed the Order of the Office of Judges. 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.

Markita Miller, a Work-Based Learning Specialist, was injured in the course of her

employment on January 4, 2010, when she slipped and fell, landing on her right shoulder. Ms.

Miller felt immediate pain and presented to Charleston General Hospital. X-rays were taken and

no fractures or dislocations were revealed. The claim was initially held compensable for a

1shoulder sprain/strain. It was determined that an MRI would be necessary, and eventually Ms.

Miller was diagnosed with a rotator cuff tear.

On March 17, 2010, Ms. Miller underwent an independent medical evaluation performed

by Saghir Mir, M.D. Dr. Mir diagnosed Ms. Miller with a traumatic rotator cuff injury related to

the January 4, 2010, injury; pre-existing enchondroma in the right shoulder, which was not

symptomatic; and some functional or psychological overlay. It was determined that Ms. Miller

had not yet reached maximum medical improvement and was temporarily and totally disabled.

Dr. Mir recommended that Ms. Miller undergo an arthroscopic examination of the right shoulder

with repair of the rotator cuff followed by three to four months of physical therapy. Ms. Miller

subsequently had surgery to repair her rotator cuff tear on April 30, 2010.

On September 29, 2010, Ms. Miller began presenting at the Holzer Clinic for continued

pain. Ms. Miller saw Bruce Haupt, M.D. He stated that Ms. Miller was status post right shoulder

subacromial decompression, acromioplasty, rotator cuff repair, and labrum debridement. He saw

no further need for surgical treatment. Upon examination, Dr. Haupt noted that Ms. Miller had

significant symptom magnification. He recommended that Ms. Miller do a long progressive

course of physical therapy to gently stretch out her capsules and restore strength in her shoulder.

Dr. Haupt opined that she ought to remain working in a limited capacity at typing. Ms. Miller

returned to the Holzer Clinic on January 17, 2011, and she saw Marietta Babayev, M.D. Dr.

Babayev’s assessment was complete tear of the right rotator cuff tendon, with retraction, status

post-surgical repair and possible reflex sympathetic dystrophy in the right upper limb. Dr.

Babayev requested a bone scan to evaluate for possible complex regional pain syndrome. An

MRI of the right shoulder was also requested.

Ms. Miller underwent an independent medical evaluation performed by David Soulsby,

M.D., on February 14, 2012. Dr. Soulsby’s impression was a rotator cuff tear of the right

shoulder which was definitely related to the allowed condition and status post-surgical repair. Dr.

Soulsby stated that there was possible chronic cervical strain syndrome or neurologic entrapment

syndrome of the right upper extremity. However, there was no evidence that these conditions

should be considered part of the compensable claim. While Ms. Miller did seem to be suffering

from chronic pain, Dr. Soulsby opined that he could not find objective evidence to indicate there

was further pathology involving the rotator cuff. He did not believe any further treatment was

warranted beyond the provision for pain management services provided by Dr. Babayev.

On July 12, 2012, an MRI taken of Ms. Miller’s right shoulder revealed evidence of prior

rotator cuff repair. No definite recurrent t ear was demonstrated. A bone scan from the same day

revealed arthritic changes. The scan was negative for reflex sympathetic dystrophy. Ms. Miller

subsequently sought treatment from Jason Pope, M.D., for her continued complaints of right

shoulder, arm, and hand pain. Dr. Pope assessed reflex sympathetic dystrophy of the upper limb

and rotator cuff rupture.

Ms. Miller testified in a deposition regarding her compensable injury. She stated that she

hit the top part of her shoulder blade on the ground when she fell. Ms. Miller testified that she

had no prior injuries or problems with her right shoulder, arm, or hand. Ms. Miller also stated

2that some of the assertions made by Dr. Soulsby in his report were incorrect. She stated that she

gave her best effort during his evaluation. Ms. Miller also authored an undated statement in

which she noted that she underwent surgery on April 30, 2010, to repair her torn rotator cuff. She

underwent physical therap y from May of 2010 through November of 2010. Ms. Miller wrote that

she still experienced pain every day. On August 9, 2013, the claims administrator denied Ms.

Miller’s request for pain management for the condition of reflex sympathetic dystrophy as it was

not a compensable component of the claim.

Ms. Miller continued to suffer pain and sought treatment independently. Through Ms.

Miller’s private insurance, she eventually underwent surgery for her cervical spine. On January

30, 2014, Ms. Miller presented at Charleston Area Medical Center for complaints of severe pain.

The report noted that she had a longstanding history of pain due to severe cervical neck

degenerative changes and discitis. On February 17, 2017, Ms. Miller presented to Neurological

Associates and reported that she was extremely pleased with her cervical spine surgery. She no

longer had any neck or arm pain. On February 25, 2017, Ms. Miller saw Fatima Aziz, M.D., who

noted that Ms. Miller reported her extreme neck and arm pain were gone after undergoing back

surgery.

On February 2, 2016, the Office of Judges affirmed the claims administrator’s decision

denying pain management for the condition of reflex sympathetic dystrophy. The Office of

Judges reviewed Charleston Jobs Corps Center’s closi ng argument in which it stated that Ms.

Miller’s alleged diagnosis of reflex sympathetic dystrophy has never officially been recognized

as a compensable component of the claim. Although Dr. Pope and Dr. Babayev diagnosed the

condition in 2012, their diagno ses have been proven inaccurate by the resolution of Ms. Miller’s

symptoms following cervical surgery. Charleston Job Corps Center stated that no post-surgical

evaluator has diagnosed Ms. Miller with reflex sympathetic dystrophy or even noted any

symptoms associated with reflex sympathetic dystrophy. The Office of Judges noted that a bone

scan report of the right shoulder dated July 12, 2012, was negative for reflex sympathetic

dystrophy. The Office of Judges concluded that reflex sympathetic dystrophy is not a

compensable component of the claim and denial of pain management treatment for reflex

sympathetic dystrophy is appropriate. The Board of Review adopted the findings of fact and

conclusions of law of the Office of Judges and affirmed its Order on July 6, 2016.

We agree with the reasoning and conclusions of the Office of Judges as affirmed by the

Board of Review. Reflex sympathetic dystrophy has never been added as a compensable

component of the claim. Ms. Miller alleges that her pain was a result of this condition, yet her

symptoms disappeared after undergoing surgery on her cervical spine, which was unrelated to

her compensable injury. The medical evidence of record supports the conclusion that reflex

sympathetic dystrophy is not a compensable condition and thus denial of any treatment for reflex

sympathetic dystrophy is appropriate.

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.

3Affirm ed

.



### ISSUED: August 24, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin J. Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

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