STATE OF WEST VIRGINIA
FILED
March 19, 2021
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Petitioner
vs.) No. 20-0123 (BOR Appeal No. 2054120)
(Claim No. 2018016155)
CONNIE TITUS,
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”). Connie Titus, by Counsel Robert L. Stultz, filed a timely response.
The issue on appeal is medical benefits. The claims administrator denied a left shoulder
arthroscopy and an arm sling on January 8, 2019. The Workers’ Compensation Office of Judges
(“Office of Judges”) reversed the decision in its August 9, 2019, Order and authorized the
requested medical benefits. The Order was affirmed by the Board of Review on January 23, 2020.
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.
Ms. Titus, a coal miner, was injured on January 12, 2018, when the bus she was driving in
a coal mine struck another bus. She sought immediate treatment at Wheeling Hospital Emergency
Room where she reported that she was traveling about fifteen miles per hour and was not wearing
a seatbelt. Ms. Titus stated that she had pain in her right thigh, knee, and hip. A left shoulder x-ray
showed no acute findings. A CT scan of the cervical spine showed multilevel disc narrowing and
spurring but no acute injury. She was diagnosed with right hip, right knee, and acute lumbar
sprains. The Employees’ and Physicians’ Report of Injury was completed at Wheeling Hospital
that day. It indicates Ms. Titus was injured when she was struck head on by a bus. The diagnoses
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were right hip strain, right knee sprain, lower back strain, unspecified head injury, and left shoulder
pain.
A treatment note by Ross Tennant, FNP, indicates Ms. Titus reported on January 15, 2018,
that at the time of her injury, she struck her head and right hip. She stated that she had significant
pain in her lower back and right hip, extending to her right leg and foot. Ms. Titus had no left
shoulder pain. Mr. Tennant diagnosed closed head injury, lumbar strain, and right hip contusion.
On January 22, 2018, Ms. Titus reported pain in her mid and lower back, a burning sensation in
her right thigh, and numbness in her right toes. Ms. Titus’s right hip pain had improved. On January
29, 2018, Ms. Titus reported lower back and right hip pain. She was diagnosed with closed head
injury, lumbar strain, right hip contusion, cervical thoracic sprain, and left shoulder sprain.
Physical therapy was recommended for the cervical and left shoulder sprains.
A February 5, 2018, treatment note from Hudson Premier Physical Therapy indicates Ms.
Titus was seen for cervical and left shoulder sprains caused by a work-related accident. She
reported that she did not have cervical or left shoulder problems prior to the injury.
David Soulsby, M.D., performed an independent medical evaluation on March 6, 2018, in
which he noted that Ms. Titus complained of pain in her chest, right hip, and lower back. Dr.
Soulsby diagnosed lumbar sprain, mild to moderate lumbar degenerative disc disease, cervical
sprain, and left shoulder sprain and found that Ms. Titus had not reached maximum medical
improvement. He recommended a left shoulder MRI and opined that Ms. Titus’s pain likely
resulted from an injury to the soft tissues at the upper end of her mastectomy scar. Dr. Soulsby
further opined that she sustained soft tissue cervical and low back sprains and that the right hip
contusion was consistent with bursitis.
Ms. Titus underwent a left shoulder MRI on March 23, 2018, which showed degenerative
changes but no evidence of acute injury or internal derangement. In a March 28, 2018, treatment
note, Mr. Tennant stated that a left shoulder MRI showed degenerative changes. Ms. Titus reported
left shoulder pain and the inability to perform overhead activities.
In an April 3, 2018, treatment note, Jeffrey Abbott, M.D., indicated Ms. Titus was seen for
right hip and left shoulder injuries. Dr. Abbott diagnosed right hip labrum tear, radiculopathy, neck
pain, and acute left shoulder pain. Ms. Titus had positive left shoulder impingement sign. A left
shoulder MRI showed acromioclavicular joint disease. A cervical MRI was performed on April
29, 2018, and revealed narrowing of the C5-6 foramina, which could affect the C5 and C6 nerve
roots. There was no spinal canal stenosis.
Dr. Soulsby performed an independent medical evaluation on July 31, 2018, in which he
diagnosed right hip labrum tear, acute lumbar sprain/strain, mild to moderate lumbar degenerative
disc disease, acute cervical sprain/strain, cervical degenerative disc disease, and left shoulder
sprain. Dr. Soulsby found that Ms. Titus had reached maximum medical improvement for her
cervical spine, lumbar spine, and left shoulder. However, Ms. Titus had not reached maximum
medical improvement for the right hip. Dr. Soulsby opined that the MRI arthrogram showed a
labrum tear. He recommended surgical repair.
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In a September 18, 2018, treatment note, Mr. Tennant noted that Ms. Titus was seen by Dr.
Schweizer, who recommended right hip arthroscopy and opined that she suffered a left shoulder
injury. Ms. Titus returned to Dr. Schweizer on October 8, 2018, for a follow-up after her right hip
surgery. She was to continue physical therapy. Ms. Titus was also to undergo an MRI and x-rays
of the left shoulder due to a lack of progress with conservative treatment and therapy. An October
23, 2018, left shoulder MRI showed subacromial subdeltoid bursitis, acromioclavicular joint
degeneration, mild glenohumeral joint degeneration with diffuse labral degeneration, and minor
rotator cuff tendinopathy with partial tearing at the supraspinatus and infraspinatus tendon joint.
On January 2, 2019, Dr. Schweizer diagnosed left shoulder subacromial impingement,
superior labrum anterior to posterior (SLAP) tear, biceps tendonitis, and acromioclavicular joint
arthritis. He recommended left shoulder arthroscopy and requested authorization for the surgery
and a left arm sling. The claims administrator denied the request on January 8, 2019. On January
23, 2019, Dr. Schweizer completed a Diagnosis Update requesting that left shoulder SLAP tear,
left shoulder pain, left subacromial impingement, left shoulder biceps tendonitis, and left
acromioclavicular degenerative joint disease be added to the claim.
Ms. Titus underwent left shoulder surgery on January 29, 2019, by Dr. Schweizer. The
post-operative diagnoses were shoulder pain of unspecified chronicity, subacromial impingement,
SLAP tear, biceps tendonitis, acromioclavicular joint arthritis, mild rotator cuff partial thickness
tear, and subacromial bursitis. On February 4, 2019, the claims administrator denied the addition
of superior glenoid labrum lesion, shoulder pain, left shoulder bicipital tendinitis and left shoulder
impingement syndrome to the claim. The claims administrator denied the addition of left shoulder
osteoarthritis to the claim on February 4, 2019.
Dr. Soulsby performed a Record Review on February 22, 2019, in which he stated that he
reviewed additional records, including a left shoulder MRI and Dr. Schweizer’s reports. Dr.
Soulsby noted that he examined Ms. Titus three times and concluded that the evidence does not
indicate Ms. Titus sustained a work-related acute disc injury. He stated that the radiographic
findings were degenerative and commonly seen in people Ms. Titus’s age. Dr. Soulsby opined that
Ms. Titus’s continued pain was not the result of her work injury. He also opined that the left
shoulder SLAP tear was not the result of the compensable injury because the first post-injury MRI
did not show a rotator cuff tear or labrum injury. Dr. Soulsby stated that impingement is usually
degenerative. Dr. Soulsby also opined that Ms. Titus did not develop left shoulder biceps tendinitis
or acromioclavicular degenerative joint disease as a result of the compensable injury. Dr. Soulsby
concluded that physical therapy was reasonable for the right hip and that acute cervical strain and
left shoulder strain should be added to the claim.
On February 26, 2019, the claims administrator added cervical sprain and left shoulder
joint sprain to the claim. The claims administrator added right hip sprain to the claim and denied
authorization of an evaluation by Dr. Schweizer, a left shoulder MRI, a referral to a pain clinic, a
physical therapy consultation, physical therapy, injections, authorization of a left shoulder
arthroscopy, and an arm sling. The Office of Judges added right hip labral tear to the claim and
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authorized the requested medical benefits on March 29, 2019. The decision was affirmed by the
Board of Review.
Ms. Titus followed up with Dr. Schweizer on April 4, 2019, who noted that Ms. Titus’s
left shoulder continued to improve. She was to continue range of motion exercises. On May 1,
2019, Ms. Titus continued to improve and was cleared for light-duty work. The Office of Judges
reversed a February 4, 2019, claims administrator’s decision and added left shoulder superior
glenoid labrum lesion, bicipital tendonitis, and impingement syndrome to the claim on May 31,
2019. Primary osteoarthritis, cervical disc displacement, cervicalgia, left shoulder pain, anesthesia
of skin, and paresthesia of the skin were denied.
The Office of Judges reversed the claims administrator’s denial of authorization for a left
shoulder arthroscopy and an arm sling and authorized the requested treatment in its August 9,
2019, Order. The Office of Judges found that the claim was held compensable for left shoulder
joint sprain. The Office of Judges determined that the evidence showed Ms. Titus injured her left
shoulder as a result of the work injury. She underwent conservative treatment, but her pain
persisted so she was referred to Dr. Schweizer, who diagnosed subacromial impingement, SLAP
tear, biceps tendonitis, and acromioclavicular joint arthritis. He also requested that those conditions
be added to the claim. The Office of Judges, in a decision dated May 31, 2019, added left shoulder
superior glenoid labrum lesion, bicipital tendonitis, and impingement syndrome to the claim. The
Office of Judge concluded that Dr. Schweizer performed left shoulder surgery to treat the
compensable conditions and such treatment should be authorized. A left arm sling was also
authorized. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order on January 23, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. West Virginia Code § 23-4-3(a)(1) (2019) provides that the
claims administrator must provide medically related and reasonably required sums for healthcare
services, rehabilitation services, durable medical and other goods, and other supplies. The record
shows that Dr. Schweizer requested authorization for and performed left shoulder surgery in order
to treat subacromial impingement, SLAP tear, biceps tendonitis, and acromioclavicular joint
arthritis. The claim has been held compensable for left shoulder superior glenoid labrum lesion,
bicipital tendonitis, and impingement syndrome. Clearly, the left shoulder surgery and arm sling
were reasonable, necessary treatment for the compensable left shoulder conditions.
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: March 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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