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Murray American Energy, Inc. v. Keller

Supreme Court of Appeals of West Virginia

September 3, 2019

MURRAY AMERICAN ENERGY, INC. Employer Below, Petitioner
v.
MICHAEL KELLER, Claimant Below, Respondent

          (BOR Appeal Nos. 2052391 & 2052570) (Claim No. 2015033220)

          MEMORANDUM DECISION

         Murray American Energy, Inc., by counsel Aimee M. Stern and Denise D. Pentino, appeals the decision of the Board of Review. Michael Keller, by Counsel M. Jane Glauser, filed a timely response.

         The issues presented on appeal concern the authorization for medical treatment and a request to add additional conditions as compensable components of the claim. On June 30, 2017, the claims administrator denied Mr. Keller's request for the authorization of a diagnosis update and referral to pain management. The Workers' Compensation Office of Judges issued an Order dated December 4, 2017, finding that authorization for a pain management referral was properly denied by the claims administrator because the request for authorization was not made by Mr. Keller's treating physician. On January 22, 2018, the Office of Judges issued a second Order finding that the claims administrator properly denied Mr. Keller's requests for a diagnosis update and referral to pain management. This appeal arises from the Board's Final Order dated July 24, 2018, in which the Board reversed the Office of Judges' December 4, 2017, and January 22, 2018, Orders. The Board concluded that right shoulder chronic pain, right upper extremity radiculitis, and history of failed rotator cuff repair are causally related to Mr. Keller's compensable injury in this claim. The Board also found that the evidence establishes that a pain management evaluation is medically necessary and reasonably required treatment for Mr. Keller's compensable injury.

         The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. 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. Keller, a coal miner, injured his back and right shoulder while pulling hoses on June 3, 2015, as part of his job at Ohio County Coal Company.[1] He treated with C. Clark Milton, D.O. on June 5, 2015. The claims administrator held the claim compensable for thoracic strain and shoulder strain on June 19, 2015. During treatment, it was determined that surgical intervention was needed to repair Mr. Keller's shoulder and he was referred to Allan Tissenbaum, M.D., who performed surgical arthroscopy on Mr. Keller on September 3, 2015. Unfortunately, he continued to have right shoulder pain following surgery.

         An MRI performed at Wheeling Hospital on February 17, 2016, revealed changes consistent with a subscapularis tear allowing the biceps tendon to displace from the bicipital groove into the anterior joint space. Dr. Tissenbaum performed a second surgery on Mr. Keller's right shoulder on April 5, 2016 at Wheeling Hospital. Mr. Keller returned to Dr. Tissenbaum on July 27, 2016, and reported that his right shoulder was not improving. On exam, Dr. Tissenbaum found limited range of motion in all planes, tenderness to palpation over the anterior shoulder, and weakness of all shoulder muscles. Dr. Tissenbaum stated that Mr. Keller, "has almost reached MMI, may need IME or opinion from another surgeon, not improving with time."

         On September 8, 2016, Mr. Keller was examined for an independent medical evaluation by Joseph Grady, M.D. Mr. Keller reported complaints of discomfort and a lack of range of motion. Dr. Grady found no shoulder instability and concluded that Mr. Keller's compensable injury had reached maximum medical improvement. Using the American Medical Association's, Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. Grady opined that he sustained 6% whole person impairment as a result of his compensable injury, based upon decreased flexion and abduction.

         Dr. Milton completed an Attending Physician's Report on September 29, 2016, indicating that Mr. Keller had reached maximum medical improvement. However, Mr. Keller returned to Dr. Milton on December 15, 2016, and reported that he was unable to perform any overhead movement with his right shoulder. Mr. Keller also complained of discomfort in his right shoulder with any physical activity. Dr. Milton assigned permanent restrictions of no lifting, pushing, or pulling greater than twenty-five pounds. Dr. Milton released Mr. Keller from his care.

         Mr. Keller returned to Dr. Milton on April 25, 2017, with complaints of shoulder pain and decreased range of motion. Dr. Milton diagnosed Mr. Keller with persistent decreased range of motion of the shoulder. Because Dr. Milton could not offer any additional treatment, he recommended a referral to another physician in Pittsburgh, PA.

         On May 31, 2017, Mr. Keller sought a second opinion and treated with orthopedic surgeon, Michael Myers, M.D. Dr. Myers diagnosed Mr. Keller with chronic pain of the right shoulder, history of failed rotator cuff repair, and radiculitis involving the upper extremity. Dr. Myers recommended a pain management evaluation prior to any further surgical treatment. Based upon his findings, Dr. Myers requested authorization for a pain management evaluation on June 2, 2017. He also submitted a Diagnosis Update form requesting the addition of right shoulder chronic pain, radiculitis of the right upper extremity, and history of failed rotator cuff repair as secondary conditions in the claim.

         As a response to Mr. Keller's request for pain management services, the claims administrator sent correspondence to Dr. Milton, Mr. Keller's treating physician in the claim, asking whether any additional diagnoses should be added to the claim other than those previously listed. Dr. Milton returned a Diagnosis Update form on June 21, 2017, and listed only the conditions previously held compensable by the claims administrator.

         Mr. Keller protested the June 30, 2017, Order of the claims administrator. The Order stated that a request had been received from Dr. Myers dated June 2, 2017, regarding authorization for a diagnosis update and referral of Mr. Keller for pain management. The claims administrator denied the request because Dr. Myers is not the treating physician of record. The Order also stated that a Diagnosis Update form was sent to Dr. Milton and he did not add any additional diagnoses to the claim. As a result, the claims administrator denied the request for treatment authorization. Mr. Keller protested the claims administrator's decision.

         On December 4, 2017, the Office of Judges affirmed the claims administrator's June 30, 2017, Order. The Office of Judges found that authorization for pain management referral was properly denied because the request for authorization was not made by Dr. Keller's treating physician. Because the claims administrator's June 30, 2017, Order also included authorization for additional diagnoses in the claim, the Office of Judges issued an additional Order on January 22, 2018. In the January 22, 2018, Order, the Office of Judges found that the Diagnosis Update and referral to pain management were properly denied ...


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