Murray American Energy, Inc. v. Connie Titus ( 2021 )

FILED
STATE OF WEST VIRGINIA July 19, 2024
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF NPPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Petitioner
vs.) No. 20-0290 (BOR Appeal No. 2054610)
(Claim No. 2018016155)
CONNIE TITUS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc., by Counsel 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 issues on appeal are medical benefits and temporary total disability. The claims
administrator denied a request for a second opinion for a neurology evaluation on August 10, 2018.
On March 15, 2019, the claims administrator denied a request for physical therapy and a right hip
corticosteroid injection. The claims administrator closed the claim for temporary total disability
benefits on April 22, 2019. On May 7, 2019, the claims administrator denied a request for left
shoulder physical therapy. The Workers’ Compensation Office of Judges (“Office of Judges”)
reversed the decisions in its September 6, 2019, Order, granted the requested medical benefits, and
ordered that the claim remain open for temporary total disability benefits. The Order was affirmed
by the Board of Review on April 14, 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.
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[.|
(d) If the decision of the board effectively represents a reversal of a prior ruling of
either the commission or 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 provisions, is clearly the result of erroneous conclusions of law, or is
so clearly wrong based upon the evidentiary record that even when all inferences
are resolved in favor of the board’s findings, reasoning and conclusions, there is
insufficient support to sustain the decision. 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 Off. 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).
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 was transported to Wheeling Hospital Emergency Room where
she reported pain in her right thigh, knee, and hip. A left shoulder x-ray showed no acute findings.
ACT 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 that day and indicates Ms. Titus was injured when she
was struck head on by a bus. The diagnoses 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. The claim
was held compensable for low back strain, right hip strain, and right knee sprain on January 26,
2018. Ms. Titus returned to Mr. Tennant on January 29, 2018, and 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 2, 2018, right hip MRI showed no definite findings. The labrum was poorly
evaluated but it was noted that the findings could indicate a labral injury. On February 3, 2018,
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Ronald Fadel, M.D., performed a record review in which he opined that cervicalgia should be
added to the claim. He found that Ms. Titus struck her head at the time of her injury and reported
head/neck pain when she sought treatment. Dr. Fadel found no neurological injury. Ms. Titus
sought treatment at Hudson Premier Physical Therapy on February 5, 2018, for cervical and left
shoulder sprains caused by a work-related accident. Ms. Titus reported that she did not have
cervical or left shoulder problems prior to the injury. The claim was held compensable for cervical
ligament sprain and left shoulder joint sprain on February 26, 2018.
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 any injury to the soft tissues at the upper end of her mastectomy scar. Dr. Soulsby
opined that Ms. Titus sustained soft tissue cervical and low back sprains and that the right hip
contusion was consistent with bursitis.
A March 23, 2018, left shoulder MRI showed degenerative changes but no evidence of
acute injury or internal derangement. In a treatment note, Jeffrey Abbott, M.D., indicated Ms. Titus
was seen for right hip and left shoulder injuries on April 3, 2018. Dr. Abbott diagnosed right hip
labrum tear, radiculopathy, neck pain, and acute left shoulder pain. Ms. Titus had positive left
shoulder impingement sign. On April 29, 2018, Ms. Titus underwent a cervical MRI which showed
narrowing of the C5-6 foramina, which could affect the C5 and C6 nerve roots. There was no
spinal canal stenosis. A right hip MRI was performed the following day and showed findings
consistent with a posterior labrum tear extending to the posterior superior labrum.
On May 4, 2018, Dr. Abbott noted that he reviewed the left shoulder, cervical, and hip
MRIs. He diagnosed right acetabular labrum tear, cervical intervertebral disc herniation without
myelopathy, and cervical neural foraminal stenosis. He requested physical therapy and a
neurosurgical consultation. The claims administrator granted a request for a neurosurgical
consultation on May 10, 2018.
Ms. Titus sought treatment from Robert Marsh, M.D., on June 11, 2018. He noted that Ms.
Titus was treated for neck pain, bilateral arm pain, tingling, and numbness. She also experienced
pain radiating into her right shoulder and forearm. Dr. Marsh diagnosed cervical spondylosis and
radiculopathy. On August 11, 2018, he noted that a cervical MRI showed mild, age appropriate
degenerative changes that were not advanced enough for surgery. Dr. Marsh opined that Ms. Titus
likely had a tear of the cervical or trapezius muscle. He stated that the condition can be difficult to
treat and had a long healing period. He recommended an epidural steroid injection.
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
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medical improvement for the right hip. Dr. Soulsby opined that the MRI arthrogram showed a
labrum tear. He recommended surgical repair. The claims administrator denied a request for a
second opinion for a neurology evaluation on August 10, 2018.
Ms. Titus returned to Dr. Schweizer on September 7, 2018, for pain in her right hip, left
shoulder, neck, and low back. She also reported cervical and lumbar radiculopathy. The claims
administrator added right hip strain to the claim on September 21, 2018. On September 25, 2018,
Dr. Schweizer performed a right hip arthroscopy. Ms. Titus was seen for follow-up on October 8,
2018. Dr. Schweizer stated that 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. The left shoulder MRI was performed on October 23, 2018, and 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 October 26, 2018, Hikmat El-Kadi, M.D., and Eric Donovan, PA-C requested referral
to physical therapy for evaluation and treatment of cervical pain and cervical disc bulging at C5-6
and C6-7. It was noted that Ms. Titus was seen for a neurosurgical evaluation for a work-related
injury. Dr. El-Kadi opined that surgery was not indicated in this case. He opined that Ms. Titus
needed an epidural steroid injection for neck pain and headache, referral to pain management, and
physical therapy.
Ms. Titus returned to Dr. Schweizer on November 5, 2018. He reviewed the left shoulder
MRI and stated that it showed tendinopathy and a small partial thickness tear of the rotator cuff.
He opined that the MRI also showed a small defect along the pectoralis, likely indicating the
muscle was peeled back. He stated that this indicates the condition was the result of the work-
related injury. He diagnosed left shoulder pain of unspecified chronicity and subacromial
impingement. The claims administrator authorized a request for a physical therapy consultation on
November 26, 2018.
On January 2, 2019, Dr. Schweizer diagnosed left shoulder subacromial impingement,
superior labrum anterior to posterior (SLAP) tear, biceps tendonitis, and acromioclavicular joint
arthritis. Dr. Schweizer requested authorization of left shoulder subacromial impingement and
SLAP tear as well as an arm sling. The claims administrator denied the request for authorization
of left shoulder arthroscopy and an arm sling on January 8, 2019.
Dr. Soulsby performed an Independent Medical Evaluation on January 22, 2019, in which
he found that Ms. Titus had reached maximum medical improvement. He found that no additional
treatment was necessary for the cervical spine, lumbar spine, or left shoulder. Dr. Soulsby opined,
however, that Ms. Titus should continue physical therapy for an additional four to six weeks to
strengthen her right hip.
Dr. Schweizer completed a Diagnosis Update on January 23, 2019, 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. On January
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29, 2019, Dr. Schweizer performed left shoulder surgery. 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.
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 on
February 4, 2019. In a separate decision that day, the claims administrator also denied the addition
of left shoulder osteoarthritis to the claim.
In a February 22, 2019, Record Review, Dr. Soulsby 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. The claims administrator added cervical sprain
and left shoulder joint sprain to the claim on February 26, 2019.
Dr. Schweizer completed a Work Capabilities Form on March 6, 2019, indicating Ms.
Titus’s status remained the same. The diagnosis was listed as right hip sprain and the plan was to
continue physical therapy and injections. His progress notes that day stated that Ms. Titus’s hip
pain was unimproved. He opined that she likely suffered a labral tear in addition to the strain.
In a March 8, 2019, Independent Medical Evaluation, Dr. Soulsby noted that Ms. Titus
reported no changes in her symptoms and no new treatment. Dr. Soulsby found that Ms, Titus had
reached maximum medical improvement and recommended no additional treatment for the
cervical spine, lumbar spine, or left shoulder. Regarding the left hip, Dr. Soulsby opined that if
weakness continued, physical therapy with a strengthening exercise program should be considered.
On March 14, 2019, the claims administrator stated that the claim would be closed in thirty
days unless additional evidence was received indicating Ms. Titus remained temporarily and
totally disabled. The claims administrator denied a request for physical therapy and a right hip
corticosteroid injection on March 15, 2019.
In a March 29, 2019, Order, the Office of Judges reversed claims administrator decisions
and added right hip labral tear to the claim, authorized a left shoulder evaluation, and authorized a
left shoulder MRI. Physical therapy and injections of the left shoulder were authorized. Physical
therapy for the cervical spine and referral to a pain clinic were also authorized.
On March 29, 2019, 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
authorized the requested medical benefits on March 29, 2019. The decision was affirmed by the
Board of Review on October 18, 2019, and by this Court on March 19, 2021.!
In an April 3, 2019, treatment note, Dr. Schweizer stated that Ms. Titus’s left shoulder and
right hip continued to improve. She was to continue range of motion exercises. The claims
administrator closed the claim for temporary total disability benefits on April 22, 2019. On May
1, 2019, Ms. Titus continued to improve and was cleared for light-duty work. Dr. Schweizer
completed a Work Capabilities Form stating that Ms. Titus could perform light-duty work with no
overhead lifting. She was to continue physical therapy and injections. The claims administrator
denied a request for physical therapy for a left shoulder superior labrum tear on May 7, 2019.
On May 31, 2019, 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. Primary osteoarthritis, cervical disc displacement,
cervicalgia, left shoulder pain, anesthesia of skin, and paresthesia of the skin were denied. The
decision was appealed to the Board of Review.
In its September 6, 2019, Order, the Office of Judges reversed the August 10, 2018; March
15, 2019; April 22, 2019; and May 7, 2019, claims administrator decisions; granted the requests
for a second opinion for a neurology evaluation, physical therapy and a right hip corticosteroid
injection, and physical therapy for a left shoulder superior labrum tear; and ordered that the claim
remain open for temporary total disability benefits. Regarding a second opinion for a neurology
evaluation, the Office of Judges determined that such treatment was reasonable. As noted in the
March 29, 2019, Office of Judges Order, Ms. Titus sustained a traumatic injury and was diagnosed
with cervical strain within a few weeks of her injury. She was also diagnosed with shoulder pain
and several physicians discussed the connection between the neck and shoulder issues. The Office
of Judges found that the cervical spine was not added to the claim until February 26, 2019, causing
a significant delay in treatment. Dr. Fadel opined in three different Record Reviews that Ms.
Titus’s cervical spine should be added to the claim and that he would recommend physical therapy
and pain management. The Office of Judges concluded that the complex nature of the case
indicates a second neurosurgical consultation should be approved.
Regarding physical therapy and injections for the right hip, the Office of Judges determined
that such treatment should also be authorized. The Office of Judges noted that Ms. Titus sustained
a right hip labral tear as a result of the compensable injury, and she underwent surgery performed
by Dr. Schweizer. Dr. Schweizer administered a right hip injection to treat a right hip strain. The
claims administrator’s denial of the requested treatment was based on Dr. Soulsby’s independent
medical evaluation in which he opined that Ms. Titus had reached maximum medical
\See Murray American Energy, Inc., v. Connie Titus, No. 19-1067, 2021 WL 1054477(W. Va. Mar. 19, 2021) (memorandum decision).
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improvement. However, the Office of Judges found that Dr. Soulsby also stated in the report that
Ms. Titus still had right hip weakness and required physical therapy. Given Ms. Titus’s ongoing
symptoms and her treating surgeon’s opinion that a right hip injection and physical therapy are
necessary treatment, the Office of Judges determined that the requested treatment should be
authorized.
The Office of Judges also determined that the request for left shoulder physical therapy
should be granted. The Office of Judges noted that the request was initially denied because the
condition for which the therapy was requested, left shoulder superior labrum tear, was not
compensable. However, on May 31, 2019, the Office of Judges modified a claims administrator
decision and added left shoulder superior glenoid labrum lesion, bicipital tendinitis, and
impingement syndrome to the claim. On August 9, 2019, the Office of Judges reversed a claims
administrator decision and authorized left shoulder surgery. The Office of Judges determined in
the instant case that physical therapy, as requested by Ms. Titus’s surgeon, was appropriate,
necessary treatment.
Finally, the Office of Judges ordered that the claim remain open for temporary total
disability benefits. The claims administrator’s closure of the claim was based on Dr. Soulsby’s
March 8, 2019, Independent Medical Evaluation, in which he found that Ms. Titus had reached
maximum medical improvement. However, Dr. Soulsby noted that she was still in physical therapy
for her left shoulder. Further, he opined that additional right hip physical therapy was necessary.
The Office of Judges found that Dr. Schweizer did not clear Ms. Titus to return to work until May
1, 2019, but that release was conditional upon the employer’s ability to provide light-duty work.
The record is unclear whether the employer was able to accommodate the restrictions. The Office
of Judges therefore concluded that Ms. Titus was temporarily and totally disabled until at least
May 1, 2019, and possibly after if the employer could or would not accommodate her restrictions.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on April 14, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1(a) workers’
compensation benefits shall be provided to those employees who have received personal injuries
in the course of and as a result of their covered employment. Ms. Titus has shown by a
preponderance of the evidence that a second neurology evaluation, right hip physical therapy, a
right hip corticosteroid injection, and left shoulder physical therapy are all necessary treatment for
compensable injuries. Pursuant to West Virginia Code § 23-4-7a, temporary total disability
benefits will cease when the claimant has reached maximum medical improvement, has been
released to return to work, or has returned to work, whichever occurs first. Though Dr. Soulsby
found Ms. Titus to be at maximum medical improvement, the Office of Judges, and by extension
the Board of Review, was correct to find that his opinion was less reliable than that of the treating
physician. Ms. Titus remained temporarily and totally disabled until at least May 1, 2019.
ISSUED: July 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
Affirmed.