Delores Turner v. Cornerstone Building Brands

FILED
February 10, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DELORES TURNER,
Claimant Below, Petitioner
vs.) No. 21-0593 (BOR Appeal No. 2056692)
(Claim No. 2020003410)
CORNERSTONE BUILDING BRANDS,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Delores Turner, a self-represented litigant, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Cornerstone Building
Brands, by Counsel Steven K. Wellman and James W. Heslep, filed a timely response.
The issue on appeal is Ms. Turner’s entitlement to medical benefits. The claims
administrator denied a request for an MRI arthrogram on March 31, 2020. On March 30, 2021, the
Workers’ Compensation Office of Judges (“Office of Judges”) found the issue of the MRI
arthrogram moot, insofar as Ms. Turner had undergone surgery without waiting for the MRI
arthrogram to be performed. This appeal arises from the Board of Review’s Order dated June 28,
2021, 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:
(c) 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
(d) 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
reweighing 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).
Ms. Turner sustained an injury to her left shoulder on July 8, 2019, while lifting windows
as a laborer for Simonton Windows. She was initially examined at MedExpress and diagnosed
with left shoulder strain. Ms. Turner was later diagnosed with an unspecified sprain of the left
shoulder joint. In an Order dated August 26, 2019, the claims administrator found the claim
compensable for an unspecified sprain of the left shoulder joint.
Ms. Turner underwent an MRI of the left shoulder on November 20, 2019. The MRI
indicated a normal MRI of the shoulder with no traumatic sequelae. The supraspinatus muscle and
tendon within the rotator cuff were found to be normal in appearance with no degeneration or
tearing. The infraspinatus, teres minor, and subscapularis muscles and tendons were also normal.
Ms. Turner was seen by Jason L. Gessell, D.O., on January 3, 2020, and reported that she
had recently participated in physical therapy and received two corticosteroid injections. Neither
treatment provided relief. On examination, Dr. Gessell found tenderness of the biceps tendon in
the lateral aspect of the shoulder. Range of motion testing indicated motion was mildly limited by
pain, especially forward flexion and abduction of the last 30 degrees. Dr. Gessell stated that Ms.
Turner had left rotator cuff strain, subsequent encounter, along with a strain of the muscle tendon
of the rotator cuff of the left shoulder. He discussed the risks, benefits, and alternatives with Ms.
Turner after diagnostic fluoroscopy of the left shoulder. Following his examination, Dr. Gessell
requested authorization for an MRI arthrogram of the left shoulder. The requested arthrogram was
to determine whether surgery was necessary.
Prasadarao Mukkamala, M.D., performed a physical examination of Ms. Turner for an
Independent Medical Evaluation on January 13, 2020. Dr. Mukkamala diagnosed a sprain/strain
resulting from the July 8, 2019, injury. He concluded that there was absolutely no evidence of a
rotator cuff tear or other significant pathology. Although her treating physician was recommending
arthroscopy, Dr. Mukkamala found no indication for arthroscopy based on the physical
examination and unremarkable MRI. Dr. Mukkamala concluded that Ms. Turner reached her
maximum degree of medical improvement, and he assessed 2% whole person impairment due to
reduced range of motion.
2
On March 31, 2020, the claims administrator entered an Order denying authorization for
an MRI arthrogram of Ms. Turner’s left shoulder. The claims administrator indicated that the
decision was based upon Dr. Mukkamala’s report dated January 13, 2020. Ms. Turner protested
the claims administrator’s decision. In support of her protest, Ms. Turner submitted a letter, with
accompanying medical billing records, from First Settlement Orthopaedics, dated September 11,
2020, and Marietta Surgery Center, dated December 21, 2020, showing that Dr. Gessell performed
subacromial decompression and labral repair. 1 She also introduced billing statements from United
Anesthesia, Inc., for the surgical procedure, as well as a letter from Mountain River Physical
Therapy noting her post-surgical left shoulder/upper extremity therapy. Ms. Turner also submitted
mileage reimbursement requests for attending therapy at Mountain River Physical Therapy.
Ms. Turner returned to Dr. Gessell on November 20, 2020, for a follow-up visit after her
subacromial decompression and labral repair of the left shoulder. In his Progress Note, Dr. Gessell
reported that the left shoulder was treated by an open surgical procedure and that she was doing
well by participating in therapy twice a week. Physical examination revealed that Mr. Turner’s
wounds were healed and showed no signs of infection, erythema, or warmth. She had full passive
range of motion with forward flexion, abduction, and external rotation. Ms. Turner was directed
to follow up in six weeks. Following the examination, Dr. Gessell planned to request that a labral
tear be added to the claim and noted that he believed that the findings of the shoulder were a direct
result of the injury.
On appeal, Ms. Turner argues that although the claims administrator denied a request for
an MRI with dye, Dr. Gessell decided that she needed to have surgery on her shoulder because her
pain became unbearable. In an Order dated March 30, 2021, the Office of Judges found the issue
of the MRI arthrogram moot, insofar as Ms. Turner had undergone surgery without waiting for the
MRI arthrogram to be performed. The Office of Judges determined that Ms. Turner cannot now
receive an MRI arthrogram to determine if surgery is necessary, since the surgery was already
performed without obtaining the testing. Although the arthrogram was found to be medically
related and reasonably necessary at the time it was requested, the Office of Judges concluded that
the issue is now moot. As a result, the claims administrator’s Order dated March 31, 2020, was
dismissed as moot. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on June 28, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The Office of Judges did not err in finding the issue moot insofar
as the diagnostic study was intended to determine whether surgery was necessary. Because the
surgical procedure was actually performed without the requested MRI arthrogram, the issue is
clearly moot. The Board of Review’s Order dated June 28, 2021, is affirmed.
Affirmed.
ISSUED:
1
The surgical treatment performed by Dr. Gessell was not requested or authorized through
Ms. Turner’s workers’ compensation claim.
3
CONCURRED IN BY: February 10, 2023
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4