Appeal No. 2051845, (Claim No. 2016024033)
Michael Shaeffer, by Robert L. Stultz, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Murray American Energy, Inc., by Denise D.
Pentino, its attorney, filed a timely response.
issue on appeal is the addition of right shoulder
osteoarthritis to the claim and authorization of physical
therapy. In three separate Orders dated September 28, 2016,
the claims administrator denied a request to add right
shoulder osteoarthritis as a compensable condition in the
claim, denied right shoulder physical therapy, and closed the
claim for temporary total disability benefits The Office
of Judges reversed the decision closing the claim for
temporary total disability benefits and affirmed the
remainder of the claims administrator's decisions in its
February 22, 2017, Order. The Order was reversed, in part,
and affirmed, in part, by the Board of Review on September 7,
2017. The Board of Review reversed the Office of Judges'
Order insofar as it granted temporary total disability
benefits. 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
Shaeffer, a coal miner, was injured in the course of his
employment on March 15, 2016, when he tripped, fell, and
caught himself with his right arm. Treatment notes from
Wheeling Hospital emergency department that day indicate Mr.
Shaeffer was treated for a work injury to his right shoulder
and lower back. An x-ray of the right shoulder showed
advanced arthritis of the glenohumeral joint. X-rays of the
lumbar spine showed arthritic changes at the sacroiliac joint
and degenerative disc disease. Mr. Shaeffer was diagnosed
with acute right shoulder injury and acute back strain.
to the compensable injury, Mr. Shaeffer had a long history of
right shoulder problems. Treatment notes from Ford City
Family Practice dated August 13, 2003, indicate Mr. Shaeffer
was treated for right shoulder pain. On August 9, 2008, Bert
Hepner, D.O., indicated in a treatment note that Mr. Shaeffer
injured his left shoulder while lifting weights and also
suffered from bilateral shoulder pain. There was radiographic
evidence of degenerative changes of the acromioclavicular
joint and glenohumeral joint. The diagnosis was sprain/strain
of the left shoulder acromioclavicular joint with subacromial
bursitis. August 1, 2011, treatment notes by William McCann,
D.O., indicate Mr. Shaeffer was again treated for right
shoulder pain. On August 31, 2011, Dr. Hepner noted that Mr.
Shaeffer was seen for right shoulder pain. He was diagnosed
with advanced degenerative joint disease of the right
shoulder. A treatment note by Ford City Family Practice on
April 10, 2012, indicates Mr. Shaeffer was diagnosed with
osteoarthritis and degenerative joint disease. Finally, Dr.
Hepner diagnosed advanced degenerative joint disease of the
right shoulder on June 22, 2012.
the compensable injury, a treatment note by Ross Tennant,
nurse practitioner at Wheeling Hospital, indicates Mr.
Shaeffer returned on March 25, 2016, with right shoulder
pain, intermittent numbness, and tingling in the hand. Range
of motion had slightly improved but the shoulder was still
weak. The diagnosis was right shoulder sprain, and a right
shoulder MRI was recommended. The MRI was performed on March
30, 2016, and showed severe osteoarthritis with degenerative
tearing of the glenoid labrum and a small glenohumeral joint
effusion. It also showed acromioclavicular joint degenerative
changes with mild bursitis. Mr. Tennant reviewed the MRI,
referred the claimant to an orthopedist, and stated that he
remained unable to work on April 1, 2016.
5, 2016, treatment note by Nathan Formaini, D.O., indicates
Mr. Shaeffer reported some minor right shoulder pain in the
past; however, since the compensable injury, he had
experienced significant pain. Dr. Formaini noted that Mr.
Shaeffer had a known diagnosis of osteoarthritis in the right
shoulder but that this was the first time he has had major
problems with it. The MRI was reviewed and interpreted as
showing severe degenerative changes, complete obliteration of
the joint space, subchondral sclerosis, osteophyte formation,
partial tearing of the supraspinatus and infraspinatus, joint
effusion, and bicep tendon partial tear with tenosynovitis.
Dr. Formaini diagnosed severe glenohumeral osteoarthritis
exacerbation and a decline in functional status following a
work injury. He recommended a right shoulder total
arthroplasty/replacement which he performed on May 19, 2016.
The pre and post-operative diagnoses were severe right
shoulder glenohumeral osteoarthritis and right shoulder
biceps tear with tenosynovitis.
Shaeffer testified in a deposition on June 16, 2016, that he
was carrying a bundle of six foot long bolts when he tripped
and caught himself with his right arm. He stated that he felt
pain instantly in his right shoulder and went to Wheeling
Hospital. He underwent right shoulder surgery on May 19,
2016, and was currently in physical therapy. Mr. Shaeffer
denied any prior right shoulder injuries but admitted to
prior aches and pains.
Office of Judges held the claim compensable for right
shoulder sprain and lumbar sprain. On August 24, 2016, Dr.
Formaini completed a diagnosis update in which he requested
that right shoulder osteoarthritis be added to the claim. He
stated that prior to the compensable injury, Mr. Shaeffer had
osteoarthritis in the right shoulder without significant
limitations, and he did not miss work. After the compensable
injury, he has experienced worsening pain and loss of range
of motion. Dr. Formaini stated on an attending physician
benefit form that Mr. Shaeffer was not at maximum medical
improvement and would be temporarily and totally disabled
from March 15, 2016, through November 11, 2016.
Fadel, M.D., completed a physician review on December 4,
2016, in which he opined that Mr. Shaeffer's compensable
injury did not cause the development of right shoulder
osteoarthritis. Dr. Fadel found that there was no objective
post-injury evidence to show an aggravation of a preexisting
condition because the symptoms of pain and limited range of
motion were present both before and after the injury. Dr.
Fadel believed Mr. Shaeffer sustained an exacerbation or
flare up of right shoulder pain, dysfunction, and range of
motion limitations as he had in the past. He found that it
was impossible to conclude whether Mr. Shaeffer sustained a
permanent aggravation or worsening of his preexisting right
shoulder disease because the usual course of conservative
treatment was skipped in favor of surgery. Dr. Fadel did
believe, however, that Mr. Shaeffer was a candidate for the
surgery as far back as 2011. He also stated that if there was
an exacerbation of his preexisting osteoarthritis, Mr.
Shaeffer would have been temporarily and totally disabled for
four to twelve weeks. He found that he would not have been
temporarily and totally disabled past September 28, 2016, if
he had received palliative treatment for the compensable
September 28, 2016, the claims administrator denied a request
to add right shoulder osteoarthritis as a compensable
condition in the claim, denied right shoulder physical
therapy two times a week for three months, and closed the
claim for temporary total disability benefits. On February
22, 2017, the Office of Judges affirmed the claims
administrator's decisions denying the addition of right
shoulder osteoarthritis and authorization for physical
therapy. The Office of Judges reversed the claims
administrator's decision closing the claim for temporary
total disability benefits and granted benefits from the date
Mr. Shaeffer stopped receiving them until the claim was
closed using proper procedure.
Office of Judges found that in regards to the right shoulder
osteoarthritis, Mr. Shaeffer had symptoms dating back to at
least August 13, 2003. In 2008, he had bilateral shoulder
pain. In 2011, he was diagnosed with right shoulder severe
degenerative joint disease with obliteration of the joint
space and osteophyte formation. In 2012, he was again
diagnosed with severe degenerative joint disease in the right
shoulder. The Office of Judges further determined that x-rays
taken on the date of the compensable injury showed advanced
osteoarthritis of the right shoulder. An MRI taken two weeks
later also showed severe osteoarthritis as well as
degenerative tearing and changes. Lastly, the Office of
Judges noted that Dr. Formaini noted on May 5, 2016, and
August 24, 2016, that Mr. Shaeffer had osteoarthritis prior
to the compensable injury. The Office of Judges concluded,
pursuant to Gill v. City of Charleston, 236 W.Va.
737, 783 S.E.2d 857 (2016), that right shoulder
osteoarthritis should not be added to the claim because it
preexisted the compensable injury and was not a discreet new
regard to physical therapy, the Office of Judges found that
the claimant failed to provide sufficient evidence showing
the physical therapy is necessary for the compensable injury.
The physical therapy was requested following the right
shoulder total arthroplasty and Mr. Shaeffer failed to prove
by a preponderance of the ...