Donald R. Endicott v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
DONALD R. ENDICOTT, August 29, 2025
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 25-ICA-68 (JCN: 2023016774)

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Donald R. Endicott appeals the January 15, 2025, order of the Workers’
Compensation Board of Review (“Board”). Respondent ACNR Resources, Inc. (“ACNR”)
timely filed a response.1 Mr. Endicott did not reply. The issue on appeal is whether the
Board erred in affirming the claim administrator’s orders, which (1) denied the addition of
cervical radiculopathy as a compensable condition in the claim, and (2) denied
authorization for a referral to pain management.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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. Endicott completed an Employees’ and Physicians’ Report of Occupational
Injury form dated March 7, 2023, which indicated that he sustained an injury to his right
shoulder while picking up straps on March 6, 2023. Per the physicians’ section, Mr.
Endicott sustained a right shoulder sprain as a direct result of an occupational injury. Also
on March 7, 2023, Mr. Endicott presented to MedExpress with right shoulder pain after
picking up a strap the previous day. The physical examination of the cervical spine revealed
normal range of motion. The assessment was pain in the right shoulder joint and sprain of
the right shoulder.

ACNR completed a Report of Injury investigation form dated March 7, 2023. The
date of injury was listed as March 6, 2023. It was reported that Mr. Endicott sustained a

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Mr. Endicott is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
Esq., Bailey, Stultz & Greene, PLLC. ACNR is represented by Aimee M. Stern, Esq.,
Dinsmore & Shohl, LLP.

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sprain/strain of the right shoulder. The injury occurred while Mr. Endicott was bending
down to pick up some straps.

Mr. Endicott followed up at MedExpress on March 12, 2023, and reported that his
right shoulder pain was much worse and radiating down the right arm. Mr. Endicott said it
felt like something was ripping in the shoulder. The assessment was shoulder strain. An
MRI of the shoulder was recommended, and Mr. Endicott was given an arm sling. On April
8, 2023, Mr. Endicott underwent an MRI of his right shoulder, which revealed a small full-
thickness partial width tear of the distal supraspinatus tendon and an abnormal intra-
articular portion of the long head of the biceps tendon.

On April 25, 2023, Mr. Endicott underwent an x-ray of the right shoulder, which
revealed no acute fractures, no dislocation or subluxation, mild degenerative changes,
small glenoid osteophytes, mild sclerosis of the greater tuberosity, degenerative changes
associated with rotator cuff pathology, and a small bony exostosis inferior clavicle likely
at the coracoclavicular ligament.

Mr. Endicott underwent an additional MRI of his right shoulder on July 26, 2023.
The MRI revealed a split tear in the long head of the biceps tendon in the bicipital groove,
low-grade partial tear of the supraspinatus tendon, mild supraspinatus and infraspinatus
tendinopathy, loss of normal fat signal in the rotator interval suggestive of adhesive
capsulitis, and mild edema-like signal in the distal clavicle, which could represent stress
related change or contusion.

On November 1, 2023, the claim administrator issued an acknowledgement of an
Administrative Law Judge (“ALJ”) order dated October 24, 2023. The claim administrator
noted that the ALJ decision reversed the claim administrator’s order dated March 14, 2023,
rejecting the claim. The ALJ found the claim compensable for right shoulder sprain and
authorized an MRI of the right shoulder.

Mr. Endicott was seen by Chad Lavender, M.D., at Marshall Orthopedics, on
January 25, 2024. Dr. Lavender assessed cord compression of the cervical spine with
associated radiculopathy and possible rotator cuff tendinopathy. However, Dr. Lavender
indicated that he was unable to fully make a diagnosis, as he did not have Mr. Endicott’s
MRI records. Dr. Lavender referred Mr. Endicott for possible surgical treatment of the
cervical spine.

On February 13, 2024, David Soulsby, M.D., performed an independent medical
evaluation (“IME”) of Mr. Endicott at the request of ACNR. Dr. Soulsby noted that Mr.
Endicott had shoulder pain since the date of the injury, and that he complained to Frederick
Pollock, M.D., on October 12, 2023, of right shoulder and neck pain. Dr. Soulsby examined
Mr. Endicott and assessed small full-thickness rotator cuff tear of the right shoulder; long
head of the biceps tendinopathy versus partial tear, right shoulder; and adhesive capsulitis

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of the right shoulder. Dr. Soulsby indicated that there was a reasonable medical probability
that Mr. Endicott sustained a right shoulder rotator cuff tear as a result of the March 6,
2023, injury. Dr. Soulsby opined that because Mr. Endicott had failed to improve with
routine nonsurgical management, he would likely need an arthroscopic rotator cuff repair
and tenodesis of the long head of biceps. However, Dr. Soulsby indicated that prior to
undergoing surgery, Mr. Endicott should resume physical therapy to restore his motion.
Finally, Dr. Soulsby stated that Mr. Endicott’s neck pain was not related to the injury in
this claim, and that Mr. Endicott’s medical records do not make physical findings, or a
diagnosis related to cervical pain.

On February 27, 2024, the claim administrator issued an order holding the claim
compensable for an incomplete rotator cuff tear of the right shoulder, no trauma.

Mr. Endicott was seen by Kara Cipriani, APRN, at Marshall Orthopedics on
February 29, 2024. Mr. Endicott presented with neck and shoulder pain on his right side.
The assessment was cervicalgia with multilevel spondylosis and adhesive capsulitis of the
right shoulder. After a review of the MRI of the cervical spine and right shoulder, APRN
Cipriani opined that Mr. Endicott’s symptoms were related to the cervical spine.

On March 7, 2024, the claim administrator issued an additional order authorizing
Dr. Lavender’s request for twenty-eight physical therapy sessions for the right shoulder.
On April 1, 2024, Dr. Lavender completed a Diagnosis Update form, which requested that
cervical radiculopathy be added as a compensable condition in the claim. When asked how
the current diagnosis related to the compensable injury, Dr. Lavender stated, “patient has
been referred to neurosurgeon Dr. Kim for further evaluation.” On April 3, 2024, the claim
administrator denied Dr. Lavender’s request to add cervical radiculopathy as a
compensable condition on the basis that it was not related to the claim. Mr. Endicott
protested this order to the Board.

Mr. Endicott followed up with Dr. Lavender on April 19, 2024, regarding his right
shoulder pain. The assessment was right shoulder adhesive capsulitis. Dr. Lavender
recommended additional physical therapy and a referral to pain management.

On May 30, 2024, Prasadarao Mukkamala, M.D., performed an IME of Mr.
Endicott. Mr. Endicott reported pain in the right shoulder and numbness in the right hand.
Dr. Mukkamala assessed a strain of the right shoulder and placed Mr. Endicott at maximum
medical improvement. Dr. Mukkamala opined that Mr. Endicott would not require any
additional diagnostic studies or treatment. Dr. Mukkamala noted that although cervical
radiculopathy was diagnosed by some of the providers, there was no objective evidence of
radiculopathy. By order dated June 3, 2024, the claim administrator denied Dr. Lavender’s
request for a referral to pain management, on the basis that Dr. Mukkamala found Mr.
Endicott to be at MMI. Mr. Endicott protested this order to the Board.

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On June 3, 2024, Dr. Lavender completed a Physical Work Capabilities form for
the claim administrator, which indicated that Mr. Endicott could return to full duty work
with no restrictions on June 5, 2024. However, Dr. Lavender indicated that Mr. Endicott
had not reached MMI for the compensable injury.

Mr. Endicott was deposed regarding his claim on August 13, 2024. Mr. Endicott
testified that he was a roof bolter at ACNR, and that on the date of the injury, he picked up
several roof straps when he pulled his shoulder, and it popped. Mr. Endicott indicated that
he went to MedExpress for treatment on the day after the injury. Mr. Endicott testified that
he began noticing problems with his neck a couple of days after the injury. Further, Mr.
Endicott stated that when he went to work on the date of the injury, he was having neck
problems, but that he had not received treatment for his neck. At the time of the deposition,
Mr. Endicott said that he had not had an MRI or an x-ray of his neck and stated that he had
returned to work.

By order dated January 15, 2025, the Board affirmed the claim administrator’s
orders, that (1) denied the addition of cervical radiculopathy as a compensable condition
in the claim, and (2) denied authorization for a referral to pain management. It is from this
order that Mr. Endicott 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.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, Mr. Endicott argues that the Board erred in adopting Dr. Soulsby’s
opinion because he provided no alternative cause of Mr. Endicott’s cervical symptoms,

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while Dr. Lavender attributed the cervical symptoms to Mr. Endicott’s compensable injury.
Further, Mr. Endicott asserts that the Board was clearly wrong in denying Dr. Lavender’s
request for a referral to pain management, because this is reasonable and medically
necessary for Mr. Endicott’s cervical radiculopathy and shoulder pain. We disagree.

In order for a claim to be held compensable, three elements must coexist: (1) a
personal injury, (2) received in the course of employment and (3) resulting from that
employment. Syl. Pt. 1, Barnett v. Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d
698 (1970).

With respect to the compensability of cervical radiculopathy, the Board found that
there is no temporal relationship between this condition and the compensable injury. The
Board noted that the physical examination of Mr. Endicott at MedExpress on the day after
the injury revealed normal range of motion of the cervical spine. Further, the medical
evidence in the record establishes that Mr. Endicott did not report pain in his neck until
October 12, 2023. The Board found that Drs. Soulsby and Mukkamala opined that the neck
was not part of the compensable condition. Further, although Dr. Lavender requested that
cervical radiculopathy be added to the claim, he did not include an explanation as to how
radiculopathy resulted from the compensable injury.

Turning to the issue of the referral to pain management, the Board concluded that
pain management is not medically related and reasonably required for the compensable
injury. 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 noted that the only compensable component in this claim is the right shoulder.
Moreover, in Mr. Endicott’s physical therapy records dated May 24, 2024, he had full,
pain-free range of motion in the right shoulder and reported no functional deficits. Mr.
Endicott was released to return to work with no restrictions on June 5, 2024. Thus, the
Board concluded that Mr. Endicott failed to establish that pain management is medically
related and reasonably required for the compensable injury.

Upon review, we cannot conclude that the Board was clearly wrong in affirming the
claim administrator’s orders, which denied compensability of cervical radiculopathy and
the request for a referral to pain management. As set forth by the Supreme Court of Appeals
of West Virginia, “[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). Based on the foregoing, we conclude that the
Board’s decision is supported by substantial evidence in the record.

Accordingly, we affirm the Board’s January 15, 2025, order.

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Affirmed.

ISSUED: August 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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