1

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

GEORGE E. KEATON, 

Claimant Below, Petitioner

vs.) No. 22-ICA-32 (JCN: 2020021565)

BECKLEY GARBAGE DISPOSAL,

Employer Below, Respondent 

MEMORANDUM DECISION

Petitioner George E. Keaton appeals the July 15, 2022, order of the Workers’ 

Compensation Office of Judges (“Office of Judges”). Respondent Beckley Garbage 

Disposal (“Beckley Garbage”) filed a timely response.1 No reply was filed. The issue on 

appeal is whether the Office of Judges erred in affirming the claim administrator’s orders 

closing the claim for temporary total disability (“TTD”) benefits and denying the additional 

diagnoses of right shoulder pain, right shoulder bursitis, right shoulder impingement, and 

right shoulder arthropathy.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable 

law, this Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the Office of Judge’s order affirming the 

closure of the claim for TTD benefits and affirming the denial of additional diagnoses in 

the claim is appropriate under Rule 21 of the Rules of Appellate Procedure.

Mr. Keaton suffered an injury on March 14, 2020, while pushing a dumpster during 

his employment with Beckley Garbage. As a result of his injury, Mr. Keaton filed a 

workers’ compensation claim. The claim was held compensable for fracture of the right 

clavicle by a claim administrator’s order dated March 23, 2020. Imaging performed on Mr. 

Keaton’s shoulder included an x-ray on May 5, 2020, which revealed acromioclavicular 

arthropathy, and a right shoulder MRI performed on May 13, 2020, which revealed 

impingement syndrome and subacromial bursitis, but no tear of the rotator cuff or glenoid 

labrum. X-rays performed on July 21, 2020, revealed mild/moderate AC joint arthropathy 

with hypertrophic change. Dr. Gordon Holen performed arthroscopic shoulder surgery on 

Mr. Keaton’s right shoulder on August 7, 2020. The surgery was covered in the claim.

1 Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by 

Jillian L. Moore, Esq.

FILED

November 18, 2022

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

The claim administrator referred Mr. Keaton to Dr. Joseph E. Grady, II, for an

independent medical evaluation (“IME”), which was performed on March 9, 2021. Dr. 

Grady determined Mr. Keaton was at his maximum medical improvement (“MMI”) for the 

injury and found a 5% whole-person impairment related to the injury. In reviewing the 

imaging, Dr. Grady determined that Mr. Keaton’s injury was superimposed upon

preexisting degenerative joint disease in the right shoulder. On April 21, 2021, the claim 

administrator closed the claim for temporary total disability benefits. Mr. Keaton protested 

the closure order to the Office of Judges.

Dr. Holen continued to treat Mr. Keaton for ongoing shoulder problems. Another 

MRI was performed on May 7, 2021, which showed mild bursal surface irregularity of the 

supraspinatus, tendinopathy, fraying of the infraspinatus, and tendinopathy of the biceps 

tendon. High-grade acromioclavicular arthropathy was also present. When Dr. Holen saw 

Mr. Keaton on May 13, 2021, his diagnoses for the right shoulder included acute pain, 

arthropathy, bursitis, and impingement. On July 30, 2021, Dr. Holen completed a 

Diagnosis Update form asking for these secondary conditions to be ruled compensable in 

the claim. 

Dr. Rebecca Thaxton wrote a Physician Review dated August 5, 2021, in which she 

reviewed Mr. Keaton’s medical records. She advised the claim administrator not to add the

conditions in the Diagnosis Update to the claim as she explained that the medical records 

did not show the conditions were causally related to the injury. She also stated that pain 

and arthropathy were vague and non-descript codes, whereas more specific conditions had 

been ruled compensable in the claim. Further, she found that bursitis and impingement 

were degenerative and preexisting conditions that were addressed in the surgery as 

permitted under West Virginia Code of State Rules § 85-20-21 (2006). Dr. Thaxton said 

that this rule allows treatment for preexisting conditions in some cases, but it does not 

require that any and all future treatments for such conditions be covered in the claim. The 

claim administrator agreed with Dr. Thaxton and issued an order dated September 1, 2021, 

denying the addition of the secondary conditions to the claim. Mr. Keaton protested this

denial to the Office of Judges.

In the decision dated July 15, 2022, the Office of Judges relied upon Dr. Thaxton’s 

report to affirm the order denying the secondary conditions. The decision found Mr. Keaton 

had a pre-injury history of right shoulder pain. A Finding of Fact in the decision stated that 

Dr. Holen’s treatment notes dated May 13, 2021, indicated that he assumed Mr. Keaton’s 

persistent pain was related to the underlying osteoarthritis. Finally, the decision cited

Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), in 

which the Supreme Court of Appeals of West Virginia ruled:

A noncompensable preexisting injury may not be added as a 

compensable component of a claim for workers’ compensation medical 

benefits merely because it may have been aggravated by a compensable 
3

injury. To the extent that the aggravation of a noncompensable preexisting 

injury results in a [discrete] new injury, that new injury may be found 

compensable.

The Office of Judges’ decision found no “discrete new injury” regarding the conditions 

listed in the Diagnosis Update. Instead, the decision found the conditions at issue were 

preexisting and held that the claim administrator did not err when it denied their 

compensability and closed Mr. Keaton’s claim for TTD benefits. The decision relied upon 

Dr. Grady’s finding that Mr. Keaton had achieved MMI for the injury and did not require

any maintenance care for the compensable injury. Mr. Keaton now appeals the Office of 

Judges’ decision.

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

compensation appeals is set forth in West Virginia Code § 23-5-12a(b) (2022), which 

states, in part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the 

Workers’ Compensation Board of Review or remand the case for further 

proceedings. It shall reverse, vacate, or modify the order or decision of the 

Workers’ Compensation Board of Review, if the substantial rights of the 

petitioner or petitioners have been prejudiced because the Board of Review’s 

findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the 

whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

Although this statute specifically references orders of the Board of Review, the same 

standard applies to our review of orders issued by the Office of Judges during the period 

of time when administrative proceedings were being transferred from the Office of Judges 

to the Board of Review. See W. Va. Code § 23-5-8a (2022) (transferring powers and duties 

of Office of Judges to Board of Review); W. Va. Code § 23-5-12(b) (2021) (specifying this 

same standard of review when Board of Review heard appeals of Office of Judges’ orders).

On appeal, Mr. Keaton contends that the Office of Judges erred in finding that his 

shoulder pain, bursitis, impingement, and arthropathy were not conditions received in the 

course of, and resulting from employment. He argues that a preponderance of the evidence 

shows the conditions are related to the compensable injury. Mr. Keaton further alleges that
4

he was working without experiencing problems until the injury and he had no treatment for 

his shoulder until the injury. In support of his claim, Mr. Keaton cites Syllabus Point 5,

James A. Moore v. ICG Tygart Valley, LLC, No. 20-0028, 2022 WL 1262269 (W. Va. Apr. 

28, 2022), which states:

A claimant’s disability will be presumed to have resulted from the 

compensable injury if: (1) before the injury, the claimant’s preexisting 

disease or condition was asymptomatic, and (2) following the injury, the 

symptoms of the disabling disease or condition appeared and continuously 

manifested themselves afterwards. There still must be sufficient medical 

evidence to show a causal relationship between the compensable injury and 

the disability, or the nature of the accident, combined with the other facts of 

the case, raises a natural inference of causation. This presumption is not 

conclusive; it may be rebutted by the employer.

Mr. Keaton contends that even if he had some minimal pre-injury shoulder pain, it did not 

require treatment and did not interfere with his work duties. Rather, he avers that his 

workplace injury rendered him unable to perform his job and caused increased pain and, 

as such, should be added to his claim. 

Further, Mr. Keaton argues the Office of Judges erred in relying upon Dr. Thaxton’s 

record review rather than Dr. Holen’s reports since he was the treating physician and was 

in the best position to determine the compensable conditions and TTD benefits. Mr. Keaton 

notes that Dr. Holen kept him off work or at less than full duty after the TTD benefits were 

suspended. He argues the benefits should extend through October 21, 2021.

Conversely, Beckley Garbage argues the Office of Judges did not commit reversible 

error as it correctly held that Mr. Keaton did not develop pain, bursitis, impingement, and 

arthropathy in his right shoulder as a result of the compensable injury. Arguing that “pain” 

should not be held compensable, Beckley Garbage cites Knicely v. Myers Fun Time Café, 

LLC, No. 14-0010, 2015 WL 1244552 (Mar. 17, 2015) (memorandum decision), in which 

the Supreme Court of Appeals of West Virginia found “lumbago” or low back pain was

not an acceptable compensable condition in a workers’ compensation claim. Further, 

Beckley Garbage argues the other secondary conditions at issue here are degenerative and 

preexisted the injury. For example, it notes that imaging performed soon after the injury 

revealed arthropathy. Also, Drs. Grady and Thaxton concluded that Mr. Keaton had 

preexisting degenerative conditions in his right shoulder that were unassociated with the 

compensable injury. Even Dr. Holen, it argues, indicated Mr. Keaton’s pain stemmed from 

the underlying osteoarthritis. 

Beckley Garbage suggests that the Court in Moore continued to endorse its previous 

holding in Gill. It argues none of the diagnoses at issue in this appeal were discrete new 

injuries, but were longstanding conditions related to the natural aging process. 
5

Additionally, Beckley Garbage argues that TTD benefits are properly terminated when an 

injured worker achieves MMI or is certified to return to work. It noted Dr. Grady placed 

Mr. Keaton at MMI and while Dr. Holen continued to treat Mr. Keaton after that finding, 

he later performed a shoulder replacement for noncompensable conditions. Beckley 

Garbage notes the shoulder replacement surgery was not requested in the claim, and it was 

not authorized in the claim. Thus, it argues, Mr. Keaton was not entitled to further TTD 

benefits.

Finally, Beckley Garbage argues that the Office of Judges’ decision was not clearly 

wrong, but instead, was supported by competent evidence. It argues that Mr. Keaton failed 

to meet his burden of proof regarding the compensability of the secondary conditions and 

the closure of TTD benefits.

Upon review, we agree with Beckley Garbage and find no error in the Office of 

Judges’ analysis and conclusion that Mr. Keaton’s right shoulder pain, right shoulder 

bursitis, right shoulder impingement, and right shoulder arthropathy were not sustained in 

the course of, and as a result of, his covered employment when he suffered the right clavicle 

fracture. It is noted that pain is a general diagnosis that is encompassed by other, more

specific compensable conditions. In the present case, Mr. Keaton’s treating physician said 

his persistent pain was related to underlying osteoarthritis. As Dr. Thaxton and Dr. Grady 

indicated, the workplace injury occurred on top of the degenerative shoulder conditions as 

revealed by the July 21, 2020, x-ray. Therefore, the Office of Judges had an adequate 

evidentiary foundation for its decision and Mr. Keaton did not prove it erred in finding pain 

and arthropathy were not compensable.

Similarly, we find no error in the Office of Judges’ ruling that Mr. Keaton’s bursitis 

and impingement were not compensable. The Office of Judges did not err in relying on Dr. 

Thaxton’s report in which she stated that the medical records showed these conditions were 

unrelated to the compensable injury. Dr. Holen’s reports do not specifically address this 

issue and did not rebut Dr. Thaxton’s findings. Instead, Dr. Holen’s operative report dated 

August 7, 2020, characterized some of the conditions in the shoulder as “degenerative.” 

Dr. Thaxton’s statements are also bolstered by Dr. Grady’s report that said Mr. Keaton’s 

shoulder had preexisting degenerative changes that were unrelated to the injury.

Mr. Keaton cites the Court’s holding in Moore and argues these conditions should 

be found compensable, regardless of whether they preexisted the injury. He argues that 

compensability was established because the conditions did not require treatment and did 

not interfere with his work until the injury in the claim. We are not persuaded by his 

argument. The evidence here tends to show Mr. Keaton’s preexisting shoulder conditions 

were symptomatic before the injury occurred. 

Importantly, the Court in Moore did not say compensability merely rested upon 

proving a condition was asymptomatic until the occupational injury occurred. The Court
6

still required “sufficient medical evidence to show a causal relationship between the 

compensable injury and the disability, or the nature of the accident, combined with the 

other facts of the case, raises a natural inference of causation. This presumption is not 

conclusive; it may be rebutted by the employer.” Moore, 2022 WL 1262269 at *1, Syl. Pt. 

5. In the present case, the Office of Judges did not err in finding the secondary conditions 

were preexisting and not discrete new injuries related to the injury in the claim as a causal 

relationship between the injury and the disability was not proven.

2

Further, we find no error in the Office of Judges’ analysis and conclusion that the 

closure of Mr. Keaton’s TTD benefits was proper since Mr. Keaton reached MMI, as 

determined by Dr. Grady on March 9, 2021. West Virginia Code § 23-4-7a(e)(4) (2005)

provides, in part, as follows:

In all cases, a finding by . . . [the] private carrier or self-insured employer, 

whichever is applicable, that the claimant has reached his or her maximum 

degree of improvement terminates the claimant’s entitlement to temporary 

total disability benefits regardless of whether the claimant has been released 

to return to work. Under no circumstances shall a claimant be entitled to 

receive temporary total disability benefits either beyond the date the claimant 

is released to return to work or beyond the date he or she actually returns to 

work.

Dr. Grady’s finding of MMI for the compensable conditions was not rebutted. After being

placed at MMI, Dr. Holen performed a noncompensable surgery on Mr. Keaton’s shoulder 

on August 26, 2021. This surgery was not covered in the claim and does not rebut Dr. 

Grady’s finding of MMI for the compensable conditions. Thus, the additional surgery 

cannot serve as a basis to maintain TTD benefits. 

Based on the foregoing, we find that Mr. Keaton has failed to demonstrate that the 

Office of Judges was clearly wrong in affirming the claim administrator’s orders dated

April 21, 2021, and September 1, 2021.

Accordingly, we affirm.

Affirmed.

ISSUED: November 18, 2022

2 Although the OOJ did not specifically cite the Moore opinion, the OOJ nonetheless 

performed the analysis specified in Moore. The OOJ considered evidence that Mr. Keaton 

was symptomatic before this injury.
7

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Mark E. Wills, sitting by temporary assignment 

Judge Thomas E. Scarr, voluntarily recused