Appeal No. 2051813) (Claim No. 2015015570)
CCBCC Operations LLC, by James Heslep, its attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Henri Coonts, by Robert Stultz, his
attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
resulting from the compensable injury. This appeal arises
from the Board of Review's Order dated August 14, 2017,
in which the Board reversed a February 10, 2017, Final
Decision of the Workers' Compensation Office of Judges,
and granted Mr. Coonts a 10% permanent partial disability
award. In its decision, the Office of Judges affirmed the
claims administrator's August 26, 2015, decision which
granted Mr. Coonts a 3% permanent partial disability award.
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
Coonts sustained an injury to his left shoulder on August 29,
2014, while pulling a case of soda weighing about thirty-five
pounds. After suffering significant pain for three weeks
following his injury, Mr. Coonts treated with Lucas J.
Pavlovich, M.D., on October 14, 2014. Dr. Pavlovich found
that Mr. Coonts's left shoulder could forward flex
passively to 120 degrees compared to 170 degrees with his
right shoulder. Radiographs of Mr. Coonts's left shoulder
revealed degenerative changes of the glenohumeral joint
consistent with osteoarthritis. Dr. Pavlovich assessed Mr.
Coonts with left shoulder strain, as well as arthritis flare.
Physical therapy was recommended.
Coonts was again treated by Dr. Pavlovich for a follow-up
evaluation on November 3, 2014. On the morning of the
evaluation, Mr. Coonts suffered a fall, landing mostly on his
back, but also on his left shoulder. At the time of
examination, he was suffering increased pain. Dr. Pavlovich
advised Mr. Coonts to continue with physical therapy with
lifting restrictions limited to ten pounds or less.
March 20, 2015, Mr. Coonts underwent surgery at Davis Medical
Center on his left shoulder. The pre-operative diagnosis was
left shoulder osteoarthritis, AC osteoarthritis, as well as
internal derangement. Dr. Pavlovich performed an arthroscopic
subacromial decompression, distal clavicle resection, as well
as loose body removal. The operative report indicates that
the articular surfaces of the glenoid and humeral head
revealed eburnated bone with degenerative changes within the
labrum. The postoperative diagnosis was listed as left
shoulder osteoarthritis, AC osteoarthritis, as well as
his surgery, Mr. Coonts followed up with Dr. Pavlovich on
July 9, 2015. Dr. Pavlovich noted that he continued to have
arthritic changes causing part of his pain as well as
stiffness. Based upon a recent functional capacity
evaluation, Mr. Coonts was limited to working in a sedentary
position with no lifting away from his body and no driving
commercial vehicles. Dr. Pavlovich offered Mr. Coonts options
of continued therapy, cortisone injections of the
glenohumeral joint, or a shoulder replacement. He was
discharged with the listed permanent restrictions.
Thrush, M.D., an orthopedic surgeon, evaluated Mr. Coonts on
July 20, 2015, for an independent medical evaluation. Dr.
Thrush found that Mr. Coonts had a well healed puncture, and
arthroscopic scars on the left shoulder with no evidence of
infection. Mr. Coonts had pain with range of motion of the
left shoulder. Dr. Thrush found that the prior x-rays are
consistent with moderately advanced arthritis of the left
shoulder. An MRI performed at Davis Memorial Hospital on
September 16, 2014, indicated degenerative changes involving
the acromioclavicular and glenohumeral joints with cystic
degenerative changes involving the head and glenoid, multiple
suspected loose bodies, and the rotator cuff was felt to be
intact. Dr. Thrush diagnosed Mr. Coonts with left shoulder
sprain on top of pre-existing advanced degenerative arthritis
of the left shoulder. The prognosis for the shoulder sprain
was listed as being good, but the general prognosis for the
left shoulder was listed as poor. Dr. Thrush stated that Mr.
Coonts has advanced pre-existing arthritis of the left
shoulder that takes years for this type of degenerative
process to progress. Dr. Thrush noted that Mr. Coonts
reported that he has had three or four other episodes of pain
in his left shoulder while working for Coca-Cola for the last
ten years. However, he did not miss work prior to the episode
on August 29, 2014. Utilizing the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), Dr. Thrush
determined that one-third of Mr. Coonts's whole man
impairment is secondary to the shoulder sprain and two-thirds
is secondary to his advanced pre-existing degenerative
arthritis of the shoulder. The one-third assessment
translated to 5% upper extremity impairment. The 5% upper
extremity impairment translates to 3% whole man impairment.
Therefore, Dr. Thrush concluded that Mr. Coonts had reached
his maximum degree of medical improvement with 3% whole man
impairment secondary to the injury of August 29, 2014.
August 26, 2015, the claims administrator granted Mr. Coonts
a 3% permanent partial disability award based upon the
opinion of Dr. Thrush. Mr. Coonts protested the Order of the
claims administrator. During the litigation process, Mr.
Coonts was evaluated for an independent medical examination
by Bennett D. Orvik, M.D., on April 19, 2016. Dr. Orvik
reviewed the prior medical reports of Dr. Pavlovich, as well
as the independent medical examination completed by Dr.
Thrush. Dr. Orvik noted that there is no history of any prior
left shoulder injuries or problems in this claim. After
examination, Mr. Coonts was found to have significant
impairment with regard to his left shoulder. Using the
American Medical Association's Guides, Dr. Orvik
found 16% upper extremity impairment, which converts to 10%
whole person impairment. In his report, Dr. Orvik stated,
"Dr. Thrush felt that two-thirds of this injury was
related to previous arthritic problems, however there is no
history of any previous shoulder injuries, so my
recommendation would be 10% whole person impairment."
February 10, 2017, the Office of Judges concluded that the
preponderance of the evidence shows that Mr. Coonts has 3%
whole person impairment from the injury occurring on August
29, 2014. Although Dr. Thrush and Dr. Orvik made similar
findings regarding upper extremity impairment, Dr. Thrush
concluded that apportionment should be made between the
shoulder injury in the claim and Mr. Coonts's
pre-existing degenerative arthritis. Dr. Orvik opined that
apportionment was not needed because Mr. Coonts does not have
a history of previous shoulder injuries. The Office of Judges
found that the preponderance of the evidence supports 3%
whole person impairment as determined by Dr. Thrush. Mr.
Coonts appealed the decision of the Office of Judges.
August 14, 2017, the Board of Review found that the
conclusions listed in the Final Decision of the Office of
Judges were clearly wrong in view of the reliable, probative
and substantial evidence of the whole record. The Board noted
that the record reflects that Mr. Coonts suffers from
pre-existing degenerative changes in the left shoulder.
However, the Board further noted that the record does not
show that Mr. Coonts was symptomatic or that it caused him to
miss work prior to his compensable injury on August 29, 2014.
The Board concluded that Dr. Thrush's apportionment of
two-thirds of the impairment to degenerative arthritis is
arbitrary and not supported by the evidence of record. The
Board found that Mr. Coonts is entitled to a 10% award based
upon the reliable opinion of Dr. Orvik.
agree with the decision of the Board of Review. West Virginia
Code § 23-4-9b (2003) requires that the degree of a
definitely ascertainable pre-existing impairment resulting
from an occupational or a non-occupational injury, disease or
any other cause be taken into account in determining the
amount of compensation allowed by reason of the compensable
injury. The determination of a definitely ascertainable
pre-existing impairment is essentially a finding that a
claimant had a permanent partial disability in an amount
certain prior to his or her compensable injury. Although the
Board of Review determined that Mr. Coonts's medical
record reflects pre-existing degenerative changes in his left
shoulder, the Board concluded that the record does not show
that Mr. Coonts was symptomatic causing him to miss work
prior to the compensable injury. The findings and opinions of
Dr. Orvik are relevant, credible, material and reliable. The
Board did not err in granting Mr. Coonts a 10% permanent
partial disability award, which is an additional 7% above and
beyond the 3% award that was granted by the claims
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 ...