STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MURRAY AMERICAN ENERGY, INC.,
FILED
Employer Below, Petitioner December 11, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0980 (BOR Appeal No. 2054190) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2019001358)
RUSSELL JENKINS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc., by Counsel Denise D. Pentino and Aimee M.
Stern, appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board
of Review”). Russell Jenkins, by Counsel Robert L. Stultz, filed a timely response.
The issues on appeal are temporary total disability benefits and medical benefits. The
claims administrator denied a request to reopen the claim for temporary total disability benefits on
November 13, 2018. On December 3, 2018, the claims administrator denied a request for an
orthopedics consultation. The Workers’ Compensation Office of Judges (“Office of Judges”)
reversed the decisions in its April 11, 2019, Order, granted temporary total disability benefits, and
authorized an orthopedic consultation. The Order was affirmed by the Board of Review on
September 24, 2019.
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. Jenkins, a coal miner, injured his right shoulder in the course of his employment on
July 14, 2018, while bolting. The Employees’ and Physicians’ Report of Injury, completed the
following day, indicates Mr. Jenkins injured his shoulder while bolting at work. The physician’s
section was completed by Mark Coomes, M.D., at MedExpress, who diagnosed right shoulder
sprain/strain. The claim was held compensable for right shoulder strain on July 24, 2018.
Temporary total disability benefits were granted from July 15, 2018, through August 1, 2018.
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On July 24, 2018, Mr. Jenkins was treated at Dynamic Physical Therapy for symptoms
consistent with right shoulder impingement. Therapy was recommended for six to eight weeks. A
July 31, 2018, treatment note from MedExpress indicates Mr. Jenkins had abnormal range of
motion and pain in the right shoulder. He was diagnosed with right shoulder sprain. A right
shoulder MRI performed on August 3, 2018, showed a small bone bruise.
Mr. Jenkins returned to MedExpress on August 14, 2018, and reported that his pain was
improving but still present. Range of motion was restricted. The diagnosis remained right shoulder
sprain. On August 28, 2018, Mr. Jenkins stated that he was ready to return to full duty work. He
was to continue physical therapy. Mr. Jenkins was released to return to full duty. Temporary total
disability benefits were suspended on August 30, 2018.
Prasadarao Mukkamala, M.D., performed an independent medical evaluation on
September 4, 2018, in which he noted that Mr. Jenkins reported right shoulder pain. Dr.
Mukkamala found normal range of motion with the exception of mild limitation of internal
rotation. Dr. Mukkamala found that Mr. Jenkins had reached maximum medical improvement and
required no further treatment.
A September 20, 2018, Dynamic Physical Therapy treatment note indicates Mr. Jenkins
was being treated for right shoulder pain and stiffness. He reported improvement in functioning
and no pain with motion. He had achieved all goals and returned to work. Mr. Jenkins was
discharged from physical therapy. The claim was closed for temporary total disability benefits on
October 2, 2018.
On November 1, 2018, Mr. Jenkins again sought treatment from MedExpress. He reported
that he had developed pain and limited range of motion in his right shoulder. He was diagnosed
with right shoulder sprain and referred to orthopedics. He was unable to work. A claim reopening
application was completed by Miraflor Khorshad, M.D., on November 6, 2018. Temporary total
disability benefits were requested from November 1, 2018, through November 7, 2018. Dr.
Khorshad opined that Mr. Jenkins required treatment and would be unable to return to work. She
further opined that Mr. Jenkins had suffered an aggravation or progression of his compensable
injury.
Mr. Jenkins returned to MedExpress for pain and limited range of motion on November 7,
2018. He was diagnosed with right shoulder impingement syndrome and released to return to
modified duty. The claims administrator denied the request to reopen the claim for temporary total
disability benefits on November 13, 2018. Mr. Jenkins was again treated at MedExpress on
November 14, 2018. He had full range of motion with pain. He was diagnosed with right shoulder
impingement syndrome. Referral to orthopedics was recommended. A consultation referral was
completed that day for the diagnoses of right shoulder impingement syndrome and right shoulder
sprain. Authorization for referral to orthopedics was requested.
Ronald Fadel, M.D., completed a Utilization Review Report on November 30, 2018, in
which he opined that Mr. Jenkins’s current symptoms were not related to the compensable injury.
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Mr. Jenkins reached maximum medical improvement for the compensable injury and returned to
work. He developed the current symptoms two months after reaching maximum medical
improvement. Dr. Fadel stated that any further treatment should be covered under Mr. Jenkins’s
personal health insurance. The claims administrator denied a request for an orthopedics
consultation on December 3, 2018.
Mr. Jenkins testified at a January 18, 2019, deposition that following his return to work,
his shoulder progressively worsened. He sought treatment because his shoulder symptoms became
more severe than when he was originally injured. Mr. Jenkins stated that he was taken off of work
on November 1, 2018, and has not returned. Mr. Jenkins also stated that he had no preexisting right
shoulder conditions. He asserted that he suffered no injury between the time he returned to work
and when he sought treatment on November 1, 2018.
The Office of Judges reversed the claims administrator’s decisions, granted temporary total
disability benefits from November 1, 2018, through November 7, 2018, and authorized an
orthopedics consultation in its April 11, 2019, Order. It determined that Dr. Mukkamala found in
his independent medical evaluation that Mr. Jenkins had reached maximum medical improvement
and required no further treatment. However, Dr. Khorshad opined in the claim reopening
application that Mr. Jenkins had sustained an aggravation or progression of his compensable injury
since reaching maximum medical improvement. The Office of Judges found that Dr. Khorshad
treated Mr. Jenkins on November 1, 2018, and determined that further treatment was necessary.
She also stated that Mr. Jenkins could not return to work while undergoing treatment. Further, Dr.
Khorshad opined that Mr. Jenkins’s current symptoms were a direct result of the compensable
injury. She determined that Mr. Jenkins was temporarily and totally disabled from November 1,
2018, through November 7, 2018. The Office of Judges concluded that Dr. Khorshad’s opinion
was more persuasive than that of Dr. Fadel. It therefore granted temporary total disability benefits
for the requested dates. The Office of Judges also found that referral to orthopedics should be
authorized. Dr. Khorshad opined that Mr. Jenkins required such treatment as a result of his
compensable injury. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on September 24, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The decision of the Board of Review is supported by a
preponderance of the evidence. After reaching maximum medical improvement and returning to
work, Mr. Jenkins suffered a progression of his compensable injury.
For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.
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Affirmed.
ISSUED: December 11, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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