MURRAY AMERICAN ENERGY, INC. Employer Below, Petitioner
MICHAEL KELLER, Claimant Below, Respondent
Appeal Nos. 2052391 & 2052570) (Claim No. 2015033220)
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
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.
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
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. 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
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."
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.
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.
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.
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.
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
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.
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 ...