IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
GEORGE E. KEATON, November 18, 2022
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-32 (JCN: 2020021565)
BECKLEY GARBAGE DISPOSAL,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner George E. Keaton appeals the July 15, 2022, order of the Workers’
Compensation Office of Judges (“Office of Judges”). Respondent Beckley Garbage
Disposal (“Beckley Garbage”) filed a timely response. 1 No reply was filed. The issue on
appeal is whether the Office of Judges erred in affirming the claim administrator’s orders
closing the claim for temporary total disability (“TTD”) benefits and denying the additional
diagnoses of right shoulder pain, right shoulder bursitis, right shoulder impingement, and
right shoulder arthropathy.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable
law, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the Office of Judge’s order affirming the
closure of the claim for TTD benefits and affirming the denial of additional diagnoses in
the claim is appropriate under Rule 21 of the Rules of Appellate Procedure.
Mr. Keaton suffered an injury on March 14, 2020, while pushing a dumpster during
his employment with Beckley Garbage. As a result of his injury, Mr. Keaton filed a
workers’ compensation claim. The claim was held compensable for fracture of the right
clavicle by a claim administrator’s order dated March 23, 2020. Imaging performed on Mr.
Keaton’s shoulder included an x-ray on May 5, 2020, which revealed acromioclavicular
arthropathy, and a right shoulder MRI performed on May 13, 2020, which revealed
impingement syndrome and subacromial bursitis, but no tear of the rotator cuff or glenoid
labrum. X-rays performed on July 21, 2020, revealed mild/moderate AC joint arthropathy
with hypertrophic change. Dr. Gordon Holen performed arthroscopic shoulder surgery on
Mr. Keaton’s right shoulder on August 7, 2020. The surgery was covered in the claim.
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Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by
Jillian L. Moore, Esq.
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The claim administrator referred Mr. Keaton to Dr. Joseph E. Grady, II, for an
independent medical evaluation (“IME”), which was performed on March 9, 2021. Dr.
Grady determined Mr. Keaton was at his maximum medical improvement (“MMI”) for the
injury and found a 5% whole-person impairment related to the injury. In reviewing the
imaging, Dr. Grady determined that Mr. Keaton’s injury was superimposed upon
preexisting degenerative joint disease in the right shoulder. On April 21, 2021, the claim
administrator closed the claim for temporary total disability benefits. Mr. Keaton protested
the closure order to the Office of Judges.
Dr. Holen continued to treat Mr. Keaton for ongoing shoulder problems. Another
MRI was performed on May 7, 2021, which showed mild bursal surface irregularity of the
supraspinatus, tendinopathy, fraying of the infraspinatus, and tendinopathy of the biceps
tendon. High-grade acromioclavicular arthropathy was also present. When Dr. Holen saw
Mr. Keaton on May 13, 2021, his diagnoses for the right shoulder included acute pain,
arthropathy, bursitis, and impingement. On July 30, 2021, Dr. Holen completed a
Diagnosis Update form asking for these secondary conditions to be ruled compensable in
the claim.
Dr. Rebecca Thaxton wrote a Physician Review dated August 5, 2021, in which she
reviewed Mr. Keaton’s medical records. She advised the claim administrator not to add the
conditions in the Diagnosis Update to the claim as she explained that the medical records
did not show the conditions were causally related to the injury. She also stated that pain
and arthropathy were vague and non-descript codes, whereas more specific conditions had
been ruled compensable in the claim. Further, she found that bursitis and impingement
were degenerative and preexisting conditions that were addressed in the surgery as
permitted under West Virginia Code of State Rules § 85-20-21 (2006). Dr. Thaxton said
that this rule allows treatment for preexisting conditions in some cases, but it does not
require that any and all future treatments for such conditions be covered in the claim. The
claim administrator agreed with Dr. Thaxton and issued an order dated September 1, 2021,
denying the addition of the secondary conditions to the claim. Mr. Keaton protested this
denial to the Office of Judges.
In the decision dated July 15, 2022, the Office of Judges relied upon Dr. Thaxton’s
report to affirm the order denying the secondary conditions. The decision found Mr. Keaton
had a pre-injury history of right shoulder pain. A Finding of Fact in the decision stated that
Dr. Holen’s treatment notes dated May 13, 2021, indicated that he assumed Mr. Keaton’s
persistent pain was related to the underlying osteoarthritis. Finally, the decision cited
Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), in
which the Supreme Court of Appeals of West Virginia ruled:
A noncompensable preexisting injury may not be added as a
compensable component of a claim for workers’ compensation medical
benefits merely because it may have been aggravated by a compensable
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injury. To the extent that the aggravation of a noncompensable preexisting
injury results in a [discrete] new injury, that new injury may be found
compensable.
The Office of Judges’ decision found no “discrete new injury” regarding the conditions
listed in the Diagnosis Update. Instead, the decision found the conditions at issue were
preexisting and held that the claim administrator did not err when it denied their
compensability and closed Mr. Keaton’s claim for TTD benefits. The decision relied upon
Dr. Grady’s finding that Mr. Keaton had achieved MMI for the injury and did not require
any maintenance care for the compensable injury. Mr. Keaton now appeals the Office of
Judges’ decision.
The standard of review applicable to this Court’s consideration of workers’
compensation appeals is set forth in West Virginia Code § 23-5-12a(b) (2022), which
states, in part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the
whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Although this statute specifically references orders of the Board of Review, the same
standard applies to our review of orders issued by the Office of Judges during the period
of time when administrative proceedings were being transferred from the Office of Judges
to the Board of Review. See W. Va. Code § 23-5-8a (2022) (transferring powers and duties
of Office of Judges to Board of Review); W. Va. Code § 23-5-12(b) (2021) (specifying this
same standard of review when Board of Review heard appeals of Office of Judges’ orders).
On appeal, Mr. Keaton contends that the Office of Judges erred in finding that his
shoulder pain, bursitis, impingement, and arthropathy were not conditions received in the
course of, and resulting from employment. He argues that a preponderance of the evidence
shows the conditions are related to the compensable injury. Mr. Keaton further alleges that
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he was working without experiencing problems until the injury and he had no treatment for
his shoulder until the injury. In support of his claim, Mr. Keaton cites Syllabus Point 5,
James A. Moore v. ICG Tygart Valley, LLC, No. 20-0028, 2022 WL 1262269 (W. Va. Apr.
28, 2022), which states:
A claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.
Mr. Keaton contends that even if he had some minimal pre-injury shoulder pain, it did not
require treatment and did not interfere with his work duties. Rather, he avers that his
workplace injury rendered him unable to perform his job and caused increased pain and,
as such, should be added to his claim.
Further, Mr. Keaton argues the Office of Judges erred in relying upon Dr. Thaxton’s
record review rather than Dr. Holen’s reports since he was the treating physician and was
in the best position to determine the compensable conditions and TTD benefits. Mr. Keaton
notes that Dr. Holen kept him off work or at less than full duty after the TTD benefits were
suspended. He argues the benefits should extend through October 21, 2021.
Conversely, Beckley Garbage argues the Office of Judges did not commit reversible
error as it correctly held that Mr. Keaton did not develop pain, bursitis, impingement, and
arthropathy in his right shoulder as a result of the compensable injury. Arguing that “pain”
should not be held compensable, Beckley Garbage cites Knicely v. Myers Fun Time Café,
LLC, No. 14-0010, 2015 WL 1244552 (Mar. 17, 2015) (memorandum decision), in which
the Supreme Court of Appeals of West Virginia found “lumbago” or low back pain was
not an acceptable compensable condition in a workers’ compensation claim. Further,
Beckley Garbage argues the other secondary conditions at issue here are degenerative and
preexisted the injury. For example, it notes that imaging performed soon after the injury
revealed arthropathy. Also, Drs. Grady and Thaxton concluded that Mr. Keaton had
preexisting degenerative conditions in his right shoulder that were unassociated with the
compensable injury. Even Dr. Holen, it argues, indicated Mr. Keaton’s pain stemmed from
the underlying osteoarthritis.
Beckley Garbage suggests that the Court in Moore continued to endorse its previous
holding in Gill. It argues none of the diagnoses at issue in this appeal were discrete new
injuries, but were longstanding conditions related to the natural aging process.
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Additionally, Beckley Garbage argues that TTD benefits are properly terminated when an
injured worker achieves MMI or is certified to return to work. It noted Dr. Grady placed
Mr. Keaton at MMI and while Dr. Holen continued to treat Mr. Keaton after that finding,
he later performed a shoulder replacement for noncompensable conditions. Beckley
Garbage notes the shoulder replacement surgery was not requested in the claim, and it was
not authorized in the claim. Thus, it argues, Mr. Keaton was not entitled to further TTD
benefits.
Finally, Beckley Garbage argues that the Office of Judges’ decision was not clearly
wrong, but instead, was supported by competent evidence. It argues that Mr. Keaton failed
to meet his burden of proof regarding the compensability of the secondary conditions and
the closure of TTD benefits.
Upon review, we agree with Beckley Garbage and find no error in the Office of
Judges’ analysis and conclusion that Mr. Keaton’s right shoulder pain, right shoulder
bursitis, right shoulder impingement, and right shoulder arthropathy were not sustained in
the course of, and as a result of, his covered employment when he suffered the right clavicle
fracture. It is noted that pain is a general diagnosis that is encompassed by other, more
specific compensable conditions. In the present case, Mr. Keaton’s treating physician said
his persistent pain was related to underlying osteoarthritis. As Dr. Thaxton and Dr. Grady
indicated, the workplace injury occurred on top of the degenerative shoulder conditions as
revealed by the July 21, 2020, x-ray. Therefore, the Office of Judges had an adequate
evidentiary foundation for its decision and Mr. Keaton did not prove it erred in finding pain
and arthropathy were not compensable.
Similarly, we find no error in the Office of Judges’ ruling that Mr. Keaton’s bursitis
and impingement were not compensable. The Office of Judges did not err in relying on Dr.
Thaxton’s report in which she stated that the medical records showed these conditions were
unrelated to the compensable injury. Dr. Holen’s reports do not specifically address this
issue and did not rebut Dr. Thaxton’s findings. Instead, Dr. Holen’s operative report dated
August 7, 2020, characterized some of the conditions in the shoulder as “degenerative.”
Dr. Thaxton’s statements are also bolstered by Dr. Grady’s report that said Mr. Keaton’s
shoulder had preexisting degenerative changes that were unrelated to the injury.
Mr. Keaton cites the Court’s holding in Moore and argues these conditions should
be found compensable, regardless of whether they preexisted the injury. He argues that
compensability was established because the conditions did not require treatment and did
not interfere with his work until the injury in the claim. We are not persuaded by his
argument. The evidence here tends to show Mr. Keaton’s preexisting shoulder conditions
were symptomatic before the injury occurred.
Importantly, the Court in Moore did not say compensability merely rested upon
proving a condition was asymptomatic until the occupational injury occurred. The Court
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still required “sufficient medical evidence to show a causal relationship between the
compensable injury and the disability, or the nature of the accident, combined with the
other facts of the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.” Moore, 2022 WL 1262269 at *1, Syl. Pt.
5. In the present case, the Office of Judges did not err in finding the secondary conditions
were preexisting and not discrete new injuries related to the injury in the claim as a causal
relationship between the injury and the disability was not proven. 2
Further, we find no error in the Office of Judges’ analysis and conclusion that the
closure of Mr. Keaton’s TTD benefits was proper since Mr. Keaton reached MMI, as
determined by Dr. Grady on March 9, 2021. West Virginia Code § 23-4-7a(e)(4) (2005)
provides, in part, as follows:
In all cases, a finding by . . . [the] private carrier or self-insured employer,
whichever is applicable, that the claimant has reached his or her maximum
degree of improvement terminates the claimant’s entitlement to temporary
total disability benefits regardless of whether the claimant has been released
to return to work. Under no circumstances shall a claimant be entitled to
receive temporary total disability benefits either beyond the date the claimant
is released to return to work or beyond the date he or she actually returns to
work.
Dr. Grady’s finding of MMI for the compensable conditions was not rebutted. After being
placed at MMI, Dr. Holen performed a noncompensable surgery on Mr. Keaton’s shoulder
on August 26, 2021. This surgery was not covered in the claim and does not rebut Dr.
Grady’s finding of MMI for the compensable conditions. Thus, the additional surgery
cannot serve as a basis to maintain TTD benefits.
Based on the foregoing, we find that Mr. Keaton has failed to demonstrate that the
Office of Judges was clearly wrong in affirming the claim administrator’s orders dated
April 21, 2021, and September 1, 2021.
Accordingly, we affirm.
Affirmed.
ISSUED: November 18, 2022
Although the OOJ did not specifically cite the Moore opinion, the OOJ nonetheless
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performed the analysis specified in Moore. The OOJ considered evidence that Mr. Keaton
was symptomatic before this injury.
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CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Mark E. Wills, sitting by temporary assignment
Judge Thomas E. Scarr, voluntarily recused
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