Cosby v. Alpha Natural Resources, Inc ( 2021 )

FILED
November 5, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
ANTHONY O. COSBY,
Claimant Below, Petitioner
vs.) No. 20-0719 (BOR Appeal No. 2055163)
(Claim No. 2014003420)
ALPHA NATURAL RESOURCES, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Anthony O. Cosby, by counsel Patrick K. Maroney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Alpha Natural
Resources, Inc., by counsel H. Dill Battle III, filed a timely response.
The issue on appeal is the amount of permanent partial disability in the claim. The claims
administrator granted no permanent partial disability award in an Order dated February 2, 2017.
On February 11, 2020, the Workers’ Compensation Office of Judges (“Office of Judges”)
affirmed the claims administrator’s decision. This appeal arises from the Board of Review’s
Order dated August 20, 2020, in which the Board affirmed the Order of the Office of Judges.
This Court has considered the parties’ briefs and the record on appeal. 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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference
to the board’s findings, reasoning and conclusions.
1
(c) If the decision of the board represents an affirmation of a prior
ruling by both the commission and the office of judges that was entered on
the same issue in the same claim, the decision of the board may be reversed
or modified by the Supreme Court of Appeals only if the decision is in clear
violation of Constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board’s material
misstatement or mischaracterization of particular components of the
evidentiary record. The court may not conduct a de novo re-weighing of the
evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Cosby injured his right shoulder in the course of his employment on May 16, 2013,
when he fell off of a beltline and tried to catch himself with his right arm. As a result, he pulled
and strained his right shoulder. By Order of the claims administrator dated September 10, 2013, a
modified compensability ruling was issued holding the claim compensable on a no lost time
basis for the condition of right shoulder sprain/strain. The claims administrator declined to add
the diagnoses of complete rupture of rotator cuff, osteoarthritis, and lumbar sprain/strain to the
claim.
The medical record indicates that Mr. Cosby had advanced right shoulder degenerative
disease prior to the compensable incident on May 16, 2013. He injured his right shoulder on July
25, 2011, and x-rays revealed moderate glenohumeral and acromioclavicular joint arthropathy
with marginal spurring of the inferior distal clavicle, acromion, and inferior medial humeral
head. A right shoulder MRI on September 30, 2011, showed increased signal in the
supraspinatus, representing tendinopathy or a partial thickness tear. There were degenerative
changes at the acromioclavicular joint and glenohumeral joint with some cartilaginous thinning
and subchondral marrow signal change, as well as fluid in the subacromial bursa and deep to the
supraspinatus muscle. He underwent extensive treatment, physical therapy, and injections with
Bone and Joint Surgeons. Clark D. Adkins, M.D., diagnosed Mr. Cosby with shoulder
osteoarthritis and rotator cuff rupture on December 13, 2012.
Peter J. Lukowski, M.D., performed right shoulder surgery on July 24, 2013, two months
after the compensable incident. The surgery performed was a long head biceps tenotomy and
debridement of a superior labral tear. The superior labral tear that was debrided was described as
“chronic looking.” Dr. Lukowski also considered performing a biceps tenodesis, but the
procedure was ruled out based upon Mr. Cosby’s age and the degree of arthritic changes seen in
the shoulder. On February 18, 2014, Dr. Lukowski noted that some of the severe glenohumeral
degenerative changes he saw when he operated were seen radiographically in May 2013, prior to
the compensable incident. Mr. Cosby had recovered from right shoulder surgery, and he was
doing well until he returned to work in the late fall. New x-rays showed further narrowing of the
2
glenohumeral joint, especially inferiorly. Dr. Lukowski concluded that most of Mr. Cosby’s pain
is coming from degenerative joint disease of his glenohumeral joint.
Mr. Cosby followed-up with Dr. Lukowski on July 8, 2014, for his right shoulder pain.
Dr. Lukowski noted severe degenerative joint disease of the right shoulder. Although he had
received periodic palliative injections in the past, his last injection was in February 2014. It was
noted that Mr. Cosby continues to work in a heavy manual labor job which exacerbates his
shoulder problems. The assessment was osteoarthritis of the shoulder, and the plan of treatment
was 80 mg Depo-Medrol given into the glenohumeral joint with future treatment as needed. The
joint was injected, and Mr. Cosby was advised to seek employment positions outside of the
manual labor work category.
On December 5, 2016, Mr. Cosby was seen by Dr. Adkins for right shoulder pain. It was
noted that activity bothers his lateral shoulder and anterior shoulder. He stated that he was able to
perform at the heavy work level, which he tolerated with difficulty. Dr. Adkins considered the
symptoms to be due more to glenohumeral arthritis. Nonsurgical options were discussed, and Mr.
Cosby was released to return to work on November 22, 2016.
Mr. Cosby was evaluated by Prasadarao B. Mukkamala, M.D., on January 12, 2017,
where he complained of right shoulder soreness and weakness, but stated that he was able to
carry on his daily life activities without restrictions. In a report dated January 13, 2017, Dr.
Mukkamala diagnosed Mr. Cosby with a right shoulder sprain. He opined that his current
complaints are causally related to preexisting, non-work related arthrosis. Dr. Mukkamala noted
that he had a prior injury to the right shoulder and that the MRI of the right shoulder performed
on June 18, 2013, revealed significant degenerative changes and evidence of acromioclavicular
joint degenerative disease. There was evidence of degenerative subchondral cysts with suspected
adjacent tearing of the glenoid labrum along the inferior aspect of the glenoid labrum and
degenerative chondrosis of the humeral head. There was partial thickness tearing of the
supraspinatus and tendinopathy/partial thickness tear of the infraspinatus tendon. Dr. Mukkamala
stated all those findings were degenerative in nature and preexisting. Using the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr.
Mukkamala found 1% whole person impairment for upper extremity impairment. However, Dr.
Mukkamala apportioned the impairment and allocated 1% to preexisting conditions. He
concluded that Mr. Cosby does not have any permanent impairment resulting from the
compensable injury in this claim.
By Order of the claims administrator dated February 2, 2017, Mr. Cosby was granted no
permanent partial disability award based on the Independent Medical Evaluation of Dr.
Mukkamala. The claim was closed for permanent partial disability benefits. Mr. Cosby protested
the claims administrator’s decision.
In an Independent Medical Evaluation report dated January 16, 2019, Bruce A.
Guberman, M.D., concluded that Mr. Cosby has right shoulder symptoms with intermittent
treatment prior to his compensable injury, after which the symptoms became more severe and he
could no longer perform the heavy work of his job. It was noted that Mr. Cosby continued to
3
have pain tenderness, range of motion abnormalities, and weakness following surgery. Dr.
Guberman found upper extremity impairment of 3% for 140° of flexion, 2% for 130° of
extension, and 2% for 60° of internal rotation, which equated to 7% upper extremity impairment
or 4% whole person impairment. Dr. Guberman acknowledged the preexisting degenerative
changes and listed the range of motion abnormalities in the left shoulder as being 1% whole
person impairment. Dr. Guberman opined that the only objective method to quantify preexisting
impairment for the right shoulder is to assume that Mr. Cosby would have had the same 1%
whole person impairment found in the left shoulder. He noted that this was the same amount
apportioned by Dr. Mukkamala. Therefore, Dr. Guberman allocated 1% whole person
impairment to the preexisting conditions and 3% whole person impairment to the compensable
injury of May 16, 2013.
An Independent Medical Evaluation report of Marsha Bailey, M.D., dated September 23,
2019, found that Mr. Cosby’s most significant complaint was loss of strength in his dominant
right upper extremity and constant right shoulder pain. Dr. Bailey stated that his current
complaints are solely the result of his severe, preexisting, and unrelated right shoulder
osteoarthritis and degenerative joint disease. Dr. Bailey found upper extremity impairment of 8%
for the right shoulder that coverts to 5% whole person impairment. She then apportioned the
entire 5% whole person impairment as preexisting and unrelated right shoulder osteoarthritis and
degenerative joint disease. Dr. Bailey supported her allocation determination by noting that Dr.
Lukowski himself characterized the changes as severe degenerative findings. She disputed Dr.
Guberman’s rationale in regard to apportionment and noted that he used the impairment in the
uninjured left shoulder as a basis for apportioning an equivalent impairment out of the
compensable right shoulder injury. Dr. Bailey stated that the flaw in Dr. Guberman’s
methodology is that he failed to account for the preexisting right shoulder injury of July 25,
2011. She explained that Dr. Guberman’s apportionment method would be appropriate if Mr.
Cosby had a normal right shoulder at the time of his compensable injury; however, this was not
the case.
In a decision dated February 11, 2020, the Office of Judges affirmed the February 2,
2017, Order of the claims administrator which granted Mr. Cosby no permanent partial disability
award. The Office of Judges found Dr. Bailey’s report to be the most persuasive medical
evidence regarding both whole person impairment and apportionment. She found that Mr. Cosby
has no whole person impairment due to the injury in this claim. On August 20, 2020, the Board
of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its decision to affirm the claims administrator’s grant of no additional permanent partial
disability award.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. The Office of Judges determined that Dr. Bailey used the correct methodology
when she apportioned Mr. Cosby’s preexisting impairment. Dr. Guberman’s opinion was
properly determined to be less credible because his apportionment methodology failed to fully
account for the contribution of all factors to Mr. Cosby’s impairment. The medical evidence of
record indicates that Mr. Cosby failed to establish that he is entitled to any greater permanent
partial disability award in this claim.
4
Affirmed.
ISSUED: November 5, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
5