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Scott v. Mercer County Board of Education

Supreme Court of West Virginia

May 7, 2018

CECIL E. SCOTT, Claimant Below, Petitioner
v.
MERCER COUNTY BOARD OF EDUCATION, Employer Below, Respondent

          BOR Appeal No. 2051767, (Claim No. 2013028581)

          MEMORANDUM DECISION

         Petitioner 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.

         The 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.

         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.

         Mr. 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.

         Mr. 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.

         James 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.

         In an 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 compensable injury.

         In a 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.

         In a 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.

         A right 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.

         Syam 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.

         In an 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.

         The 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 ...


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