Appeal No. 2052921) (Claim No. 2017029088)
Mardo Masonry, Inc., by Counsel Toni J. Williams, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). Kevin Bennett, by
Counsel Reginald D. Henry, filed a timely response.
issue on appeal is compensability. The claims administrator
rejected the claim on July 3, 2017. The Office of Judges
reversed the decision in its April 25, 2018, Order and held
the claim compensable for left-shoulder strain. The Order was
affirmed by the Board of Review on September 21, 2018.
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
Bennett, a mason, alleges that he injured his left-shoulder
in the course of his employment on December 7, 2016. Mr.
Bennet has a history of left shoulder problems predating the
injury at issue. An October 23, 2015, treatment note by Mark
Wantz, M.D., indicates Mr. Bennett was seen for his lumbar
spine, at which time he also reported left-shoulder pain. He
stated that he had an MRI eight years prior that showed an
annular tear. Mr. Bennett declined surgery at that time. He
still had pain with movement. On February 9, 2016, Mr.
Bennett again reported left-shoulder pain. He informed Dr.
Wantz that he did not want to proceed with an orthopedic
referral or surgery at that time because he could not afford
it. On July 11, 2016, it was noted that he had moderate,
chronic, left-shoulder pain that was worsening. On November
14, 2016, Mr. Bennett reported bilateral-shoulder pain. Dr.
Wantz told him that he had a rotator-cuff injury but Mr.
Bennett again denied a referral to orthopedics.
Bennett sought treatment from Dr. Wantz following the injury
at issue. On December 15, 2016, Dr. Wantz noted that Mr.
Bennett is a brick layer who injured his left-shoulder while
laying blocks the week prior. He recommended an MRI to check
for a suspected rotator-cuff tear. On January 17, 2017, Dr.
Wantz stated in a letter that Mr. Bennett was unable to work
until his suspected rotator cuff injury could be resolved.
Mr. Bennett was seen by Nassem Beauchman, M.D., a surgeon, on
February 13, 2017. Dr. Beauchman noted that Mr. Bennett had
left-shoulder pain and muscle weakness. Physical therapy had
not helped. Dr. Beauchman assessed left-shoulder rotator-cuff
tear versus labral injury. A left-shoulder MRI was performed
on March 27, 2017, and showed a partial thickness tear of the
distal supraspinatus tendon. Dr. Beauchman performed
left-rotator-cuff surgery on April 26, 2017. The pre- and
post-operative diagnoses were left-shoulder impingement and
Employer's Report of Occupational Injury, completed on
May 17, 2017, indicates Mr. Bennett reported that he was
injured on December 7, 2016, while laying blocks. The injury
was described as a left-shoulder strain. The employer
questioned the injury because it suspected that Mr. Bennett
had previously injured his left shoulder. In an addendum, the
employer noted that Mr. Bennett did not complete an onsite
injury report, quit coming to work, and did not notify his
jobsite foreman of his injury. The Employees' and
Physicians' Report of Injury was completed on May 23,
2017, and indicates Mr. Bennett injured his left shoulder
while lifting blocks. The physician's section was
completed by Dr. Wantz and listed the diagnosis as
May 26, 2017, recorded statement, Mr. Bennett alleged that he
reported his injury to his foreman, Paul Giles, right after
it happened. Mr. Bennett stated that he had injured his
shoulders in the past but that a few days of rest fixed the
problem. He also stated that he told the shop steward, Glenn
Patterson, about his injury. Mr. Patterson also gave a
recorded statement and said that he worked with Mr. Bennett
on the day of the alleged injury. They were laying
eighty-pound blocks at the time. He stated that he could tell
Mr. Bennett was hurting when they were working. On the way
home, he told Mr. Patterson that he had pulled something in
his shoulder and was going to take a few days off of work to
recover. Mr. Bennett did not return to work after that.
Stanley Bayne also gave a recorded statement and indicated
that he worked with Mr. Bennett on the date of the alleged
injury. They were laying blocks when Mr. Bayne noticed Mr.
Bennett grimacing. He asked if he was alright and Mr. Bennett
stated that he had injured his shoulder that day. Mr. Bayne
stated that Mr. Bennett finished the work for the day using
only his right arm and told him that he was not returning to
the job the next day. Lastly, Paul Giles, indicated in his
statement that he was Mr. Bennett's foreman. He reported
that he was not informed that Mr. Bennett injured himself
until six months after the injury allegedly occurred.
Bennett returned to Dr. Wantz on August 7, 2017. His
treatment note indicates Mr. Bennett had returned to work. It
was noted that he still had some left-shoulder pain. In a
September 11, 2017, letter, Dr. Wantz stated that the
left-shoulder MRI showed a tear of the distal supraspinatus
tendon. He opined that the tear most likely happened in
December of 2016, when Mr. Bennett was laying brick at work.
He admitted that he had not reviewed any of the operative
notes from the shoulder surgery.
Kelly Agnew, M.D., performed a record review on December 29,
2017, in which he found that Mr. Bennett complained of
shoulder pain prior to the December 7, 2016, injury. Mr.
Bennett reported shoulder pain to several doctors, including
Dr. Wantz, who diagnosed a rotator-cuff injury. Dr. Agnew
noted that Mr. Bennett was examined on December 15, 2016, and
showed no pain in the left shoulder. He was able to fully
move his left-shoulder. The MRI findings were determined to
be chronic in nature. Finally, there was no rotator-cuff
injury seen during the left-shoulder arthroscopic surgery.
Dr. Agnew concluded that Mr. Bennett did not sustain a
left-shoulder injury on December 7, 2016.
claims administrator rejected the claim on July 3, 2017. The
Office of Judges reversed the decision and held the claim
compensable for left-shoulder strain in its April 25, 2018,
Order. It found that the evidentiary record was consistent as
to the mechanism of injury. Mr. Bennett reported each time
that he injured his left shoulder while lifting a block. Mr.
Bayne saw him finish out the work day using only his right
arm. Mr. Patterson stated that he could tell Mr. Bennett was
in pain. The Office of Judges found that Mr. Bennett informed
his supervisor, Paul Giles, of his injury the day that it
occurred. This was supported by statements from Mr. Bennett,
Mr. Bayne, and Mr. Patterson, as well as the Employees'
Report of Injury. The Office of Judges therefore found that
Mr. Bennett established that he sustained an injury in the
course of his employment.
Office of Judges next determined that Dr. Wantz is in the
best position to assess Mr. Bennett's work-related injury
because he is the treating physician and treated him both
before and after the injury. The Office of Judges noted that
Mr. Bennett testified in a deposition that he has had pain in
both shoulders off and on over the years. Prior to the injury
at issue, he could perform his job duties despite having some
tenderness and pain in his left shoulder. After the injury,
he was unable to work. The Office of Judges found that prior
to the injury, Dr. Wantz documented left shoulder pain and
tenderness but that Mr. Bennett had full range of motion.
After the injury, he had significantly reduced range of
motion and more severe pain. Dr. Wantz's finding of
limited range of motion was supported by physical therapy
notes which found Mr. Bennett's range of motion was half
of what is normal. The Office of Judges therefore found that
Mr. Bennett suffered a discrete new injury to his left
Office of Judges found that at the time of his initial
evaluation, Dr. Wantz diagnosed left-shoulder-joint strain
with possible disorder of the rotator cuff. Though an MRI
showed a rotator-cuff tear, when Mr. Bennett underwent
surgery, no such tear was found. The Office of Judges
concluded that the claim should be held compensable for a
left-shoulder strain. Regarding Dr. Agnew's record
review, the Office of Judges found that the report was less
reliable than the opinion of Dr. Wantz. Dr. Agnew merely
performed a review of the records and did not physically
examine Mr. Bennett. Also, he relied on records between
September of 2011 and March of 2015 that reference shoulder
pain; however, the records do not specify which shoulder and
were not introduced into the evidentiary record. Dr. Agnew
also failed to consider Dr. Wantz's findings of limited
range of motion post injury and Dr. Beauchman's findings
of severe pain and muscle weakness on February 13, 2017,
which significantly differed from the preinjury symptoms. The
Office of Judges therefore concluded that Mr. Bennett
sustained a left-shoulder strain in the course of and
resulting from his employment. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on September 21, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Though
Mr. Bennett clearly experienced shoulder pain prior to the
compensable injury, his left-shoulder symptoms greatly
increased after the December 7, 2016, injury. He experienced
increased pain and a 50% reduction in his range of motion. A