Quinn Transportation, LLC v. Daniel T. Park

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
QUINN TRANSPORTATION, LLC, September 5, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-186 (JCN: 2021021272) OF WEST VIRGINIA

DANIEL T. PARK,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Quinn Transportation, LLC, (“Quinn”) appeals the April 10, 2023, order
of the Workers’ Compensation Board of Review (“Board”). Respondent Daniel T. Park
filed a timely response. 1 Petitioner did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s order and authorizing a left shoulder
reverse arthroplasty procedure.

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.

Mr. Park completed an Employees’ and Physicians’ Report of Occupational Injury
on April 14, 2020, indicating that he injured his left shoulder at work. According to the
physicians’ section, Mr. Park was diagnosed with a left arm strain which was attributed to
an occupational injury. Subsequently, Mr. Park underwent an MRI of his left shoulder,
which revealed a rotator cuff tear. On March 5, 2021, Mr. Park underwent surgery to
correct the rotator cuff tear.

Following the surgery, Mr. Park participated in physical therapy but continued to
suffer symptoms of left shoulder muscle fatigue with an inability to lift weight. Clinical
notes from his physical therapist indicate that on June 11, 2021, Mr. Park reported that he
had used his left arm to reach for the turn signal in his vehicle when he felt a sharp pain in
the back of his shoulder. At an appointment on June 16, 2021, Mr. Park indicated that his
shoulder was “still hurting,” and the physical therapist noted that progress with strength
was slow. Notes from a June 21, 2021, appointment indicate that Mr. Park was performing
like someone would six weeks post-surgery, though he was much farther out from his

1
Quinn is represented by Jeffrey B. Brannon, Esq. Mr. Park is self-represented.
1
surgery than six weeks, and the physical therapist implied that the reason for his slow
progress may be because his rotator cuff tear had been “massive.” On June 28, 2021, Mr.
Park reported to his physical therapist that he felt a “pop” in his shoulder when he reached
to open a door and that it was sore afterward.

On July 15, 2021, Mr. Park underwent an MRI arthrogram of the left shoulder,
which revealed a recurrent massive rotator cuff tear. Though not clear from the record, it
appears as though Mr. Park’s treating physician/surgeon, George K. Bal, M.D., requested
authorization for a left shoulder reverse arthroplasty to correct the recurrent tear. At
Quinn’s request, Randall K. Schaefer, M.D., performed a claim evaluation dated
September 10, 2021, wherein he addressed the issue of whether the left shoulder reverse
arthroplasty requested by Dr. Bal should be authorized. Citing to the Official Disability
Guidelines (“ODG”) by MCG Health, Dr. Schaefer opined that “the medical necessity of
this request is not established.” According to Dr. Schaefer, the ODG provides “indications”
for a reverse shoulder arthroplasty and that, upon review of the medical evidence submitted
to him, it was unclear whether Mr. Park met the indications. For example, Dr. Schaefer
noted that he had no documentation of Mr. Park’s BMI, psychological state, deltoid
function and passive range of motion, and indications of failure in postoperative care. As
such, Dr. Schaefer recommended against authorizing the procedure.

By order dated September 17, 2021, the claim administrator denied Dr. Bal’s request
for authorization of a left shoulder reverse arthroplasty based on Dr. Schaefer’s report. Mr.
Park protested this order to the Board. On October 13, 2021, Dr. Bal authored
correspondence wherein he indicated that Mr. Park had suffered a recurrent massive rotator
cuff tear and was in need of a reverse arthroplasty. Dr. Bal addressed the issues raised by
Dr. Schaefer, explaining that Mr. Park had demonstrated limited functional demands that
plateaued with physical therapy, had a BMI less than 40, and was psychologically stable.
Dr. Bal opined that the procedure was a reasonable option to help improve Mr. Park’s pain
and function.

Mr. Park underwent an independent medical evaluation performed by Chuan Fang
Jin, M.D., in February of 2022. Dr. Jin examined Mr. Park and reviewed several records,
including emergency room records from the date of Mr. Park’s injury, clinical notes from
Mr. Park’s physical therapy sessions, clinical notes from appointments with Dr. Bal in
January of 2021 and January 2022, a report from Mr. Park’s March 2021 rotator cuff repair,
and both MRI reports. Dr. Jin did not specifically mention Dr. Bal’s October 13, 2021,
correspondence. Dr. Jin recommended against authorizing the left shoulder reverse
arthroplasty. According to Dr. Jin, the medical evidence showed that Mr. Park suffered a
rotator cuff tear superimposed on preexisting degenerative changes/arthrosis of the left
shoulder, which was surgically repaired. Dr. Jin agreed that a reverse arthroplasty was an
appropriate treatment option for Mr. Park’s condition, but opined that the recurrent tear
was not related to the compensable injury because the initial rotator cuff tear had been
surgically corrected. Dr. Jin noted that nontraumatic rotator cuff tears commonly occur in

2
shoulders with degenerative conditions and that a rotator cuff will typically not have a
recurrent tear without new trauma. Dr. Jin opined that, logically, the recurrent tear was a
direct result of underlying degenerative issues and not the compensable injury.

By order entered on April 10, 2023, the Board reversed the claim administrator’s
order and authorized the left shoulder reverse arthroplasty procedure. The Board found that
Dr. Schaefer acknowledged that a reverse arthroplasty would be an appropriate treatment
for Mr. Park’s recurrent rotator cuff tear if he met certain criteria and that Dr. Bal’s October
13, 2021, correspondence demonstrated that Mr. Park did, in fact, meet the criteria set forth
in Dr. Schaefer’s report. While Dr. Jin recommended against authorizing the procedure,
the Board found that she did not appear to be aware of Dr. Bal’s assessment of “status post
rotator cuff repair and biceps tenodesis with subsequent failure of the construct” and,
therefore, found her report was not persuasive.

The Board acknowledged Quinn’s arguments that Mr. Park sustained intervening
incidents that could have caused the recurrent tear, including his reaching for his turn signal
and opening a door as noted in his physical therapy records. However, the Board found
that there was no medical opinion regarding the significance of these incidents. The Board
concluded that Dr. Bal performed Mr. Park’s initial rotator cuff repair surgery and
continued to treat him thereafter and, as such, was in the best position to determine the
necessary treatment. According to the Board, the medical evidence demonstrated that Mr.
Park continued to have symptoms following his rotator cuff repair and that a subsequent
MRI revealed a recurrent rotator cuff tear. The Board concluded that this evidence
established that the left shoulder reverse arthroplasty was medically necessary for and
reasonably related to the compensable injury. Quinn 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;
(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.

3
Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Quinn argues that the Board was clearly wrong in reversing the claim
administrator’s order and authorizing the left shoulder reverse arthroplasty. According to
Quinn, the medical evidence establishes that Mr. Park’s rotator cuff tear was surgically
repaired in March of 2021, and Mr. Park failed to establish that his recurrent rotator cuff
tear was causally related to the compensable injury. Quinn argues that the Board erred in
disregarding the report of Dr. Jin, who was the only physician who specifically addressed
the causal relationship between the recurrent tear and the compensable injury, and the
report of Dr. Schaefer, who demonstrated that the medical necessity of the procedure had
not been established. Moreover, Quinn argues, the Board ignored the fact that several
intervening events occurred, as noted in the physical therapy clinical notes, that could have
caused the recurrent tear. Given these alleged failures by the Board, Quinn concludes that
this Court must reverse the April 10, 2023, order authorizing the reverse arthroplasty
procedure.

Upon our review, we find that Quinn failed to demonstrate that the Board’s findings
and conclusions were clearly wrong. As the Supreme Court of Appeals of West Virginia
has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review
are deferential ones which presume an agency’s actions are valid as long as the decision is
supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W.
Va. 442, 473 S.E.2d 483 (1996). With this high standard of review in mind, we are unable
to conclude that the Board erred authorizing the request for a left shoulder reverse
arthroplasty.

West Virginia Code § 23-4-3(a)(1) (2005) provides that the claim administrator
must provide medically related and reasonably required “[s]ums for healthcare services,
rehabilitation services, durable medical and other goods, and other supplies.” Here, the
Board found that Dr. Bal performed Mr. Park’s rotator cuff repair and continued to treat
him thereafter and, as such, was in the best position to determine the necessary treatment
for Mr. Park’s condition. The medical evidence demonstrated that, following Mr. Park’s
second MRI, Dr. Bal assessed him as status post rotator cuff repair and biceps tenodesis
with subsequent failure of the construct, and that Dr. Bal opined that the requested left
shoulder reverse arthroscopy was a reasonable treatment option for Mr. Park.

While Quinn argues that the reports of Drs. Jin and Schaefer were more persuasive,
we find no error in the Board’s findings in that regard. Specifically, the Board found that
Dr. Jin’s report was not persuasive because she was not aware of Dr. Bal’s assessment.
Though Quinn cites to portions of Dr. Jin’s report indicating that she considered some
reports from Dr. Bal, she did not mention his opinion that the construct had failed following
Mr. Park’s initial rotator cuff repair. Further, though Quinn points out that Dr. Schaefer
found that the medical necessity of the procedure had not been established, the Board found

4
that Dr. Schaefer agreed that the reverse arthroplasty was reasonable if Mr. Park met certain
criteria and that Dr. Bal demonstrated that Mr. Park did, in fact, meet those criteria.

Moreover, while Quinn claims that there were intervening events, such as Mr. Park
reaching for his turn signal and opening a door, that caused the recurrent tear, it cites to no
medical evidence attributing the recurrent tear to these so-called intervening incidents.
Accordingly, based on this evidence, we cannot find that the Board was clearly wrong in
concluding that the request for the left shoulder reverse arthroplasty was medically
necessary for and reasonably related to the compensable injury based on Dr. Bal’s
assessment of status post rotator cuff repair and biceps tenodesis with subsequent failure
of the construct. Therefore, we affirm the Board’s April 10, 2023, order authorizing the left
shoulder reverse arthroplasty.

Affirmed.

ISSUED: September 5, 2023

CONCURRED IN BY:

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

5