Appeal No. 2051314) (Claim No. 2011026616)
Thomas Rotruck, by Robert L. Stultz, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. West Virginia University - BOR, by H. Dill
Battle III, its attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. Rotruck sustained as a result of his compensable injury.
The claims administrator granted no additional permanent
partial disability award on September 15, 2014. The Office of
Judges affirmed the decision in its May 13, 2016, Order. The
Order was affirmed by the Board of Review on October 24,
2016. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
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
Rotruck, a maintenance worker, injured his lower back, right
hip, right leg, and right shoulder in the course of his
employment when he fell while clearing ice off of sidewalks
on February 1, 2011. A right shoulder x-ray taken on February
22, 2013, showed severe hypertrophic degenerative changes of
the acromioclavicular joint. A right shoulder MRI performed
on April 15, 2013, showed a two centimeter full thickness
tear of the mid portion of the supraspinatus tendon as well
as an extensive partial tear of the musculotendinous junction
and distal portion of the supraspinatus tendon. There were
also extensive degenerative changes of the acromioclavicular
operation summary from WVU Hospitals dated September 13,
2013, indicates Mr. Rotruck underwent a right shoulder
arthroscopy, acromioplasty, and rotator cuff repair for the
diagnoses of superior labral tear and rotator cuff tear.
Surveillance video of Mr. Rotruck shot between January 31,
2014, and February 11, 2014, showed him using his right upper
extremity in various manner while using various tools.
May 13, 2014, independent medical evaluation, Joseph Grady,
M.D., noted the compensable conditions as right
acromioclavicular joint sprain and lumbar sprain. He found
that Mr. Rotruck had reached maximum medical improvement.
Using the American Medical Association's Guides to
the Evaluation of Permanent Impairment (4th ed. 1993),
he found 1% impairment for the right shoulder injury after
deducting the previous award of 4%.
29, 2014, progress report from WVU Hospitals details an
incident during a May 20, 2014, procedure on Mr.
Rotruck's left shoulder. He was getting onto the
operating table, used his right arm, felt a pop in his right
shoulder, and experienced pain. He woke from anesthesia with
significant right shoulder pain. The claims administrator
granted no additional permanent partial disability award on
September 15, 2014.
progress report from WVU Hospitals dated October 2, 2014,
states that Mr. Rotruck had a right shoulder arthroscopy in
September of 2013. He was having mild pain in that shoulder
and an MRI was planned. However, his pain became
significantly worse after he injured it moving onto the
operating table during his left shoulder surgery. He has
experienced increased pain since. He was diagnosed with right
shoulder large recurrent rotator cuff tear which was found to
be unrepairable due to its size.
December 17, 2014, Bennett Orvik, M.D., performed an
independent medical evaluation in which he noted that Mr.
Rotruck returned to full duty on March 3, 2014. He had a
prior right shoulder injury for which he received 4%
permanent partial disability award. Dr. Orvik diagnosed right
rotator cuff tear with residual range of motion
abnormalities. Using the American Medical Association's
Guides, Dr. Orvik assessed 10% impairment for the
right shoulder. Subtracting the prior impairment, Dr. Orvik
found that Mr. Rotruck has 6% impairment for the compensable
February 1, 2016, physician review, Christopher Martin, M.D.,
found that Mr. Rotruck has experienced subsequent right
shoulder injuries that he clearly relates to his worsening
right shoulder function. The most recent MRI shows a large
rotator cuff tear which had previously been repaired, raising
the possibility that this new tear occurred during the left
shoulder surgery when his pain worsened. Dr. Martin found no
ratable impairment in the right shoulder. Dr. Martin stated
that due to the large variations in range of motion
measurements, range of motion cannot be used as a basis for
formulating impairment in this case. He found that there are
two explanations for the variations. First, it is possible
that he reinjured his right shoulder during his left shoulder
surgery, but since Dr. Bal's measurements were made after
that injury, it was unlikely. His second explanation was that
Mr. Rotruck is inconsistent in his presentation. Dr. Martin
noted that he was surveilled and observed performing tasks
that Dr. Martin did not believe Mr. Rotruck would be capable
of given the described severity of his problems. Dr. Martin
concluded that at the time Dr. Grady performed his
evaluation, there was no reason to doubt the consistency of
his range of motion measurements.
Office of Judges affirmed the claims administrator's
grant of no additional permanent partial disability award on
May 13, 2016. It found that Dr. Grady determined that Mr.
Rotruck had 4% impairment in his right shoulder, but since he
had previously received a 4% award, no further permanent
partial disability was required. The only report of record
that found a higher impairment rating was that of Dr. Orvik
who assessed 10% impairment. His report was determined to be
unreliable. The Office of Judges found that Mr. Rotruck
injured his right shoulder on February 1, 2011, and underwent
rotator cuff repair surgery on September 13, 2013. On May 20,
2014, during a procedure for the opposite shoulder, Mr.
Rotruck attempted to lift himself onto the operating table,
felt a pop in his right shoulder, and then felt immediate
pain. An MRI taken of the right shoulder shortly after showed
a large rotator cuff tear that, unlike the prior one, could
not be repaired. The Office of Judges further determined that
Mr. Rotruck was observed in surveillance video prior to the
May 20, 2014, incident during surgery, which shows what he
was capable of prior to that incident.
Office of Judges found that the evidence of record indicates
Mr. Rotruck sustained either a new, separate tear, or a tear
of a different quality on May 20, 2014. Thus, he sustained a
separate and distinct intervening event not related to the
claim at hand which must be taken into consideration in
determining a right shoulder impairment rating. The Office of
Judges found that a review of Dr. Orvik's report shows it
fails to mention the May 20, 2014, intervening incident.
Therefore, his finding of 6% impairment was determined to be
unreliable. Dr. Grady's report was found to be the most
reliable of record. His examination occurred after the right
rotator cuff was repaired on September 13, 2013, and before
the intervening incident on May 20, 2014. The Board of Review
adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on October 24, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
evidence indicates Mr. Rotruck largely recovered from his
compensable right shoulder injury and then sustained a
separate, intervening injury to that shoulder. Dr.
Orvik's evaluation was performed after the ...