Nichlas Harris v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
NICHOLAS HARRIS,
Claimant Below, Petitioner April 10, 2023
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-257 (BOR: 2058361) OF WEST VIRGINIA

(JCN: 2022000877)

ACNR RESOURCES, Inc.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Nicholas Harris appeals the decision of the Workers’ Compensation
Board of Review (“Board”) dated October 25, 2022, affirming the Office of Judge’s
(“OOJ”) order dated June 2, 2022. The OOJ affirmed three orders of the claim
administrator. One order denied the addition of an unspecified injury of the muscle/tendon
of the left rotator cuff and derangement of the left shoulder as compensable diagnoses in
the claim; another order denied authorization for left shoulder reverse total arthroplasty;
and a third order denied temporary total disability (“TTD”) benefits. Respondent ACNR
Resources, Inc., (“ACNR”)1 filed a timely response.2 Mr. Harris did not file a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, 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 Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On July 11, 2021, Mr. Harris, a plant operator, injured his left shoulder when he fell
down steps in his workplace. According to statements Mr. Harris made at a treatment visit
with Sylvia Heston, APRN, FNP-BC, two days after the injury, he fell on a bent step and
reached out and backward with his left arm, catching the handrail and putting his weight

1
For reasons not readily apparent in the appendix record, the respondent substituted
“Marion County Coal Resources, Inc.” for the employer that was identified below as
“ACNR Resources, Inc.” Consistent with the action of the Supreme Court of Appeals in
Delbert v. Murray American Energy, Inc., __ W. Va. __, __ n.1, 880 S.E.2d 89, 92 n.1
(2022), we use the name of the employer as designated in the order on appeal: ACNR
Resources, Inc.
2
Mr. Harris is represented by J. Thomas Greene, Jr., Esq. and T. Colin Greene, Esq.
ANCR is represented by Aimee M. Stern, Esq.
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on the left arm. Mr. Harris reported to Nurse Heston that he had immediate left shoulder
pain. By order dated July 29, 2021, the claim administrator ruled the claim compensable
for an “unspecified sprain of unspecified shoulder joint.”

Jennifer Lultschik, M.D., treated Mr. Harris on August 2, 2021, and August 16,
2021, for his left shoulder pain following the workplace injury. Dr. Lultschik ordered a
shoulder MRI due to her concern about a possible rotator cuff injury that she related to the
workplace injury.

An MRI of the left shoulder was performed on August 18, 2021, and revealed full-
thickness tears of the supraspinatus and infraspinatus tendons and a large, partial-thickness
tear of the subscapularis tendon. The supraspinatus and infraspinatus tendon fibers were
retracted and there was mild atrophy of both muscles. George Bal, M.D., an orthopedic
surgeon, reviewed the MRI and examined Mr. Harris on August 23, 2021. Mr. Harris
reported that while he did not have significant problems with the shoulder until the injury,
he experienced “mild pain in the shoulder” when he worked as a roof bolter. Further, Mr.
Harris indicated that his pain began to subside after he changed jobs. Dr. Bal noted that the
MRI showed “a large rotator cuff tear with retraction and mild fatty atrophy.” Because of
the size of the tear, and noting that atrophy can hinder the healing of a repair, Dr. Bal
presented the option of a reverse arthroplasty and Mr. Harris decided to proceed with the
arthroplasty.

Prasadarao B. Mukkamala, M.D., conducted an independent medical evaluation
(“IME”) on October 25, 2021. Upon reviewing the left shoulder MRI, Dr. Mukkamala
opined that the significant retraction and atrophy seen were indicative that the rotator cuff
tear was a chronic condition that predated the compensable injury. Further, Dr. Mukkamala
noted that Mr. Harris had problems with his left shoulder for more than ten years while
working as a roof bolter and electrician; however, after he changed jobs and became a plant
operator, the shoulder did not bother him as significantly. Dr. Mukkamala determined that
the compensable injury was a sprain/strain and contusion that may have exacerbated
symptoms in the shoulder, but the injury did not cause the tear. Following a range of motion
examination, Dr. Mukkamala placed Mr. Harris at maximum medical improvement
(“MMI”) and assigned 6% whole person impairment to the compensable injury and 5%
whole person impairment to preexisting conditions. In Dr. Mukkamala’s opinion, the total
shoulder arthroplasty proposed by Dr. Bal was to address the noncompensable, preexisting
rotator cuff tear and was unrelated to the compensable injury.

On October 25, 2021, Dr. Bal asked the claim administrator to authorize left
shoulder reverse total arthroplasty. A few days later, in an Attending Physician’s Report
dated October 29, 2021, Dr. Bal indicated that Mr. Harris was not at MMI and remained
temporarily totally disabled as he awaited surgery. On December 2, 2021, Dr. Bal
completed a Diagnosis Update form requesting left rotator cuff injury and internal
derangement be ruled compensable in the claim. In relating the conditions to the

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compensable injury, Dr. Bal explained that Mr. Harris had fallen at work and landed on his
left shoulder and an MRI demonstrated a large rotator cuff tear with retraction.

On October 28, 2021, the claim administrator issued a notice suspending TTD
benefits based on Dr. Mukkamala’s finding that Mr. Harris was at MMI. On October 29,
2021, the claim administrator denied authorization for the left shoulder reverse total
arthroplasty based on Dr. Mukkamala’s IME. By order dated December 6, 2021, the claim
administrator closed the claim for TTD benefits, citing the October 28, 2021, notice, and
noting that no additional evidence had been received to substantiate the continuation of
benefits. On December 15, 2021, the claim administrator denied Dr. Bal’s Diagnosis
Update based upon Dr. Mukkamala’s IME report finding the conditions were not related
to the claim. Mr. Harris protested the TTD closure, the denial of surgery, and the denial of
secondary conditions.

On December 21, 2022, Mr. Harris testified at a deposition that he did not have left
shoulder problems until his injury on July 7, 2021, but that he had right shoulder problems
when he worked as a roof bolter. He did not recall telling Dr. Bal that he had pre-injury
pain in his left shoulder.

On December 22, 2022, Dr. Bal performed left reverse total shoulder arthroplasty
noting that Mr. Harris had no rotator cuff attachment superiorly and the remnants of the
subscapularis tendon and teres minor were preserved. On March 8, 2022, Dr. Mukkamala
issued an addendum report based on his review of Dr. Bal’s operative report. Dr.
Mukkamala determined that the operative report confirmed his earlier opinion that the
rotator cuff tear was chronic, degenerative, and preexisted the injury.

On June 2, 2022, the OOJ ruled that Mr. Harris did not suffer a rotator cuff injury
and internal derangement of the shoulder in the injury on July 11, 2021, and thus the
conditions and surgery request were properly denied. Further, the OOJ ruled that TTD
benefits were properly terminated because Dr. Mukkamala placed Mr. Harris at MMI. By
order dated October 25, 2022, the Board affirmed the OOJ’s order. Mr. Harris now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), 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;

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(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.

Duff v. Kanawha Cnty. Comm’n, __ W. Va. __, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, Mr. Harris argues that Drs. Lultshick and Bal correctly determined that
he sustained a rotator cuff injury and internal derangement of his left shoulder as a result
of the injury at work on July 11, 2021. Mr. Harris asserts that Dr. Bal promptly discontinued
Mr. Harris’ physical therapy after reviewing the MRI that revealed significant damage to
the shoulder, and a left shoulder reverse arthroplasty was recommended. In response to Dr.
Mukkamala’s finding that the injury consisted of a “sprain/contusion of the left shoulder
superimposed upon preexisting chronic rotator cuff tear,” Mr. Harris contends that there
was no medical evidence that the rotator cuff tears preexisted the injury in the claim. Mr.
Harris asserts that the Supreme Court of Appeals has held that “[w]here, . . . only probable
or conjectural reasons or causes are assigned by physicians in an effort to explain the
disabilities on grounds other than the injury, the presumptions should be resolved in favor
of the employee rather than against him.” Syl. Pt. 1, Pripich v. State Comp. Comm’r, 112
W. Va. 540, 166 S.E. 4 (1932).

Mr. Harris also asserts that the Supreme Court of Appeals of West Virginia has held
that “[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. . . .” Syl. Pt. 5,
Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022). Mr. Harris
contends that he was working at full duty without symptoms or limitations at the time of
the injury, and had no history of shoulder complaints, thus he argues that his disability must
be presumed to be the result of his work injury.

Mr. Harris also asserts that the surgery performed by Dr. Bal should have been
authorized in order for him to recover from the work injury. Further, Mr. Harris contends
that the closure of TTD benefits was improper because his treatment providers did not
release him to return to work, and Dr. Bal specified that he would need to remain off work
for six months after the surgery to recover. In addition, Mr. Harris contends that his
orthopedic surgeon, Dr. Bal, was more qualified to assess his needs, and therefore, his
opinion should be afforded greater evidentiary weight than that of Dr. Mukkamala.

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Based on our review, we find that the Board did not err in affirming the OOJ’s
decision. The conditions sought to be added to the claim were not new injuries and the
Supreme Court of Appeals has held that:

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
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. Syllabus Point 3, Gill v. City of Charleston, 236 W. Va. 737,
783 S.E.2d 857 (2016).

Moore, 247 W. Va. at 292, 879 S.E.2d at 781, syl. pt. 4. The OOJ properly weighed the
evidence and relied on Dr. Mukkamala’s conclusion that Mr. Harris’ rotator cuff tear and
internal derangement of the left shoulder were chronic, preexisting, degenerative
conditions that did not result from the work injury on July 11, 2021. Dr. Ball requested the
conditions be added to the claim and noted that the MRI demonstrated a large rotator cuff
tear with retraction, but did not address or rebut Dr. Mukkamala’s opinion that the
significant retraction and atrophy were indicative of a chronic, preexisting condition.
Therefore, the OOJ did not abuse its discretion in holding that the conditions were not
compensable and the Board properly affirmed.

Since the conditions of rotator cuff tear and internal derangement are not
compensable, the OOJ, as affirmed by the Board, did not err in affirming the denial of the
left shoulder reverse total arthroplasty, which was treatment for noncompensable
conditions. Similarly, the OOJ, as affirmed by the Board, did not err in affirming the
closure of the claim for TTD benefits, as Mr. Harris was at MMI for the compensable
injury.

Accordingly, we affirm.

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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