CECIL E. SCOTT, Claimant Below, Petitioner
MERCER COUNTY BOARD OF EDUCATION, Employer Below, Respondent
Appeal No. 2051767, (Claim No. 2013028581)
Cecil E. Scott, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Mercer County Board of Education, by Jillian
L. Moore, its attorney, filed a timely response.
issue on appeal is the addition of right cubital tunnel
syndrome and right carpal tunnel syndrome to the claim as
well as authorization of an EMG. The claims administrator
denied an EMG of the right upper extremity on April 22, 2016.
On July 28, 2016, it denied the addition of right cubital
tunnel syndrome and right carpal tunnel syndrome to the
claim. The Office of Judges affirmed the decisions in its
December 28, 2016, Order. The Order was affirmed by the Board
of Review on June 23, 2017. 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
Scott, a plumber, was injured in the course of his employment
on April 22, 2013, while lifting pipe dies. A treatment note
by Steven O'Saile, M.D., that day indicates Mr. Scott was
lifting a pipe when it was dropped and he felt his shoulder
jerk. Dr. O'Saile diagnosed right shoulder traumatic
rotator cuff tear with acromioclavicular joint arthritis. The
claim was held compensable for sprain/strain of the shoulder
and upper arm and later for rotator cuff sprain/strain and
rotator cuff tear.
Scott underwent a right shoulder rotator cuff repair and a
right shoulder subacromial decompression performed by Dr.
O'Saile on July 26, 2013. A right shoulder MRI taken on
April 27, 2014, showed a full thickness supraspinatus and
infraspinatus tendon tear with significant retraction of the
torn tendons. It also showed tendinopathy and a new superior
labral tear. Authorization for an arthroscopy of the right
shoulder with labral tear and rotator cuff tear was approved
and Mr. Scott underwent a second surgery on June 2, 2014. The
post-operative diagnoses were right shoulder superior labral
tear and right shoulder rotator cuff tear.
Dauphin, M.D., performed a physician review on September 10,
2014, in which he recommended that a request for an EMG to
evaluate the ulnar nerve in the elbow be denied. He noted
that the allowed diagnosis in the claim is for the shoulder.
He found that the ulnar nerve was not injured on the date of
injury and the elbow is not part of the claim. Dr. Dauphin
further noted that Mr. Scott's alleged onset of symptoms
began many months after the date of injury. The claims
administrator denied a request for an EMG of the right upper
extremity on September 16, 2014.
independent medical evaluation on September 23, 2014, Jerry
Scott, M.D., concluded that Mr. Scott had reached maximum
medical improvement for the compensable injury. Using the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed. 1993), he
assessed 5% impairment. He then apportioned 3% to preexisting
conditions and 2% to the compensable injury. In a report
dated December 2, 2014, Dr. Scott stated that he had reviewed
additional records and concluded that the request for an
EMG/nerve conduction study of the right upper extremity was
not causally related to nor necessary treatment for the
July 14, 2015, independent medical evaluation, Bruce
Guberman, M.D., found that Mr. Scott had reached maximum
medical improvement. He found signs and symptoms consistent
with right ulnar neuropathy of the elbow that were
attributable to the compensable injury. Dr. Guberman
recommended an EMG/nerve conduction study of the right upper
extremity. He assessed 7% impairment.
February 29, 2016, treatment note, Gary McCarthy, M.D.,
diagnosed Mr. Scott with right traumatic rupture of the
rotator cuff, right cubital tunnel syndrome, and right carpal
tunnel syndrome. A right shoulder x-ray taken that day showed
narrowing of the subacromial space and mild osteoarthritic
changes in the acromioclavicular joint. Dr. McCarthy referred
him for an EMG. The claims administrator denied the request
for an EMG/nerve conduction study of the right upper
extremity on March 25, 2016.
shoulder MRI taken on April 13, 2016, showed supraspinatus
and infraspinatus tears with partial retraction, fatty
atrophic changes of the muscles, subscapularis tendinopathy
with probable partial tear, and visible longhead of the
biceps tendon. There were also moderate acromioclavicular
degenerative changes. In a treatment note a few weeks later,
Dr. Scott diagnosed laceration of the muscles and tendons of
the right rotator cuff. Dr. McCarthy then completed a
diagnosis update on May 17, 2016, in which he requested that
right cubital tunnel syndrome and right carpal tunnel
syndrome be added to the claim.
Stoll, M.D., performed a physician review on June 18, 2016,
in which he determined that the diagnosis of traumatic
rupture of the rotator cuff should not be added to the claim
as it was not medically supported. He also found that the
diagnoses of carpal tunnel syndrome and cubital tunnel
syndrome were not causally related to the compensable injury.
He stated that Mr. Scott sustained an injury to his shoulder
and the elbow was not involved. He also noted that the onset
of symptoms for carpal and cubital tunnel syndrome was
sixteen months after the compensable injury.
August 1, 2016, independent medical evaluation, Mark Baratz,
M.D., diagnosed massive right rotator cuff tear and right
cubital tunnel syndrome. He opined that the rotator cuff tear
was related to the compensable injury but found no
relationship between Mr. Scott's cubital tunnel syndrome
and the compensable injury. Dr. Baratz further stated that he
saw no evidence of carpal tunnel syndrome.
claims administrator denied a request for an EMG of the right
upper extremity on April 22, 2016. On July 28, 2016, it
denied the addition of right cubital tunnel syndrome and
right carpal tunnel syndrome to the claim. The Office of
Judges affirmed the decisions in its December 28, 2016,
Order. It found that Mr. Scott was injured while lifting
pipes off of a truck. He slipped off the truck and his arm
and shoulder were jerked. He was initially seen by Dr.
O'Saile and neither the wrist nor elbow were mentioned at
that time. Elbow and wrist symptoms did not appear until July
of 2014, over a year after the compensable injury occurred.
The Office of Judges found that the etiology of Mr.
Scott's alleged cubital and carpal tunnel syndrome has