Appeal No. 2052314) (Claim No. 2016020928)
Asplundh Tree Expert Company, by Melissa M. Strickler, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Matthew Brown, by
Stephen P. New and Stacey L. Fragile, his attorneys, filed a
issue on appeal is compensability of the claim. On February
16, 2016, the claims administrator rejected Mr. Brown's
application for benefits. The Workers' Compensation
Office of Judges reversed the claims administrator's
decision and found the claim compensable for right shoulder
dislocation on November 3, 2017. The Office of Judges also
granted temporary total disability benefits as substantiated
by the record. This appeal arises from the Board of
Review's Order dated April 2, 2018, in which the Board
affirmed and modified the decision of the Office of Judges.
The Order was modified to reflect that the claim is
compensable for a one-time dislocation of the right shoulder.
The Board of Review found that treatment for the right
shoulder dislocation should be covered from December 16,
2015, through June 16, 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
Brown, a tree trimmer, sustained a workplace injury on
December 16, 2015. He was transported to the emergency room
of Raleigh General Hospital by foreman Jeremy Ennis with
complaints of right shoulder pain. Mr. Brown was examined by
Jose Romero, M.D., and underwent x-rays of the right
shoulder, which revealed anterior glenohumeral dislocation
and reduced right shoulder dislocation. He was discharged
with instructions to follow up with his physician, to take
pain medication as needed, to wear an arm sling for several
days, and to perform range of motion exercises.
December 20, 2015, Mr. Brown completed an Employee's
Report of Occupational Injury form. The physician's
section of the form was completed by Dr. Romero. The claims
administrator rejected Mr. Brown's application for
benefits in an Order issued on February 16, 2016. The claims
administrator rejected the claim due to Mr. Brown's
medical history of prior shoulder dislocations. The medical
record indicated that Mr. Brown had dislocated his shoulder
multiple times prior to the alleged incident on December 16,
2015. The claims administrator concluded that the shoulder
dislocation was not a result of Mr. Brown's employment.
It was the claims administrator's belief that the
dislocation of Mr. Brown's shoulder could have happened
at any time regardless of whether he was working or not. Mr.
Brown filed a timely protest to the claims
January 13, 2016, Mr. Brown presented to James DeHaven, M.D.
and Michael Taylor, M.D., of Summersville Orthopedics with
complaints of right shoulder pain. Mr. Brown reported that he
had experience 7-8 prior dislocations, with the last
occurrence in 2012. Dr. DeHaven placed Mr. Brown on light
duty restrictions at work, and he was ordered to not climb
trees. An MRI of the right shoulder was ordered, and Dr.
DeHaven expressed the need for possible shoulder stability
treatment records dated May 23, 2016, Dr. DeHaven noted that,
"[t]his dislocation was just one in a series of several;
therefore, not work related." Dr. DeHaven noted that Mr.
Brown advised him that he had a history of past dislocations.
On June 16, 2016, Mr. Brown presented to Dr. DeHaven for a
follow-up and to obtain the results of his MRI. The notes
revealed, "the MRI was pretty much normal as far as the
glenoid. He has a little mild uptake in the lateral aspect of
the humeral head itself, which is just a residual from his
injury from dislocation." Dr. DeHaven was of the opinion
that Mr. Brown would have to have surgery to stabilize his
August 8, 2016, Mr. Brown presented to Dr. DeHaven and Dr.
Taylor for follow-up and to obtain results from his EMG and
NCV studies. Treatment notes revealed, "the EMG and NCV
studies revealed mild carpal tunnel syndrome, but this is not
carpal tunnel syndrome, and then some other sort of
polyradiculopathy of his cervical spine. He wants to go ahead
and have his shoulder fixed. He will be put on the schedule
for an arthroscopic-assisted Bankart repair or capsular shift
type operation if his labrum is okay."
Brown underwent arthroscopic surgery at Summersville Regional
Medical Center on October 7, 2016. Dr. DeHaven performed an
arthropscopic open Bankart repair of Mr. Brown's right
shoulder. Mr. Brown tolerated the surgery well and his right
arm was placed in a sling. He underwent post-operative
treatment consisting of exercise, manual therapy, ultrasound,
e-stim therapy, and cold therapy.
October 25, 2016, Mr. Brown gave his sworn testimony in
support of his claim. He testified about his employment with
the Asplundh Tree Expert Company and how he was injured on
December 16, 2015. Mr. Brown testified that he has had prior
dislocations between 2006 through 2011. Mr. Brown testified
that on December 16, 2015, he was "hunching" and
moving up the tree while using ropes with friction knots. As
he was pushing up with his right hand, he heard and felt a
loud pop in his shoulder. He immediately experienced an
excruciating amount of pain. Although he had suffered several
dislocations in the past, Mr. Brown testified that it did not
feel like the occasions when he injured himself by falling or
after an ATV accident. He explained that a co-worker, Daniel
Shrewsbury, helped him remove his gear, and the general
foreman was called. He was transported to Raleigh General
Hospital, where he was diagnosed with right shoulder
dislocation. He testified that he has had no dislocations
since December 16, 2015.
Brown submitted the sworn testimony of Daniel Shrewsbury, a
line clearance employee of the employer, who was deposed on
October 25, 2016. Mr. Shrewsbury testified that he was
working with Mr. Brown on December 16, 2015, and was present
when he dislocated his shoulder. He testified that as Mr.
Brown was moving up the tree and slid his knot up, he heard a
noise that caused him to ask Mr. Brown if he was okay. When
Mr. Brown returned to the ground, he told Mr. Shrewsbury that
he had dislocated his shoulder. Mr. Shrewsbury testified that
the job involves pulling your body weight. Mr. Shrewsbury was
Mr. Brown's direct supervisor. He testified that he and
several other of his co-workers drafted incident notes about
the service of a Subpoena/Subpoena Duce Tecum, Dr. Romero was
deposed on January 10, 2017. Dr. Romero testified as to his
credentials, past medical experience, and his medical
treatment of Mr. Brown. Dr. Romero was the physician who
treated Mr. Brown on December 16, 2015, for the right
shoulder dislocation injury. Dr. Romero ordered x-rays of the
shoulder and made a diagnosis of anterior glenohumeral
dislocation. He testified that determination of causation of
Mr. Brown's dislocation is beyond him and should be
issued by an orthopedic specialist. Dr. Romero stated that
statistics support the opinion that someone who has sustained
one prior dislocation is more susceptible to further
dislocations of the shoulder. Dr. Romero signed the Report of
Injury form and testified that the information submitted on
the form was accurate based upon the treatment given to Mr.
Brown on December 16, 2015.
Ennis, general foreperson for the employer, was deposed on
March 4, 2017. Mr. Ennis testified that he was working about
a mile away from Mr. Brown on December 16, 2015, when he
received a call about Mr. Brown's injury. Mr. Ennis
testified that Mr. Brown had worked with him for about a
fourteen month span of time. During that span of fourteen
months, Mr. Ennis was not aware of Mr. Brown suffering any
incidents involving his shoulder. Mr. Ennis transported Mr.
Brown to ...