CHARLESTON – The West Virginia Supreme Court of Appeals issued a memorandum decision on Dec. 19, agreeing with the West Virginia Workers’ Compensation Board on the period of time for temporary total disability benefits in an appeal involving Murray American Energy and one of its employees.
The issue on appeal is whether temporary total disability benefits for the period of June 2, 2015, through Nov. 23, 2015, are appropriate, according to the decision.
“The claims administrator determined they were not appropriate on August 31, 2016,” the decision states. “The Office of Judges reversed the claims administrator’s decision on January 19, 2017, and held that benefits from June 2, 2015, through November 23, 2015, were appropriate.”
The Board of Review affirmed the order of the Office of Judges on June 8.
Stephen J. Gorshe, an employee for Murray American Energy, was shoveling on June 1, 2015, when he felt pain in his right shoulder. He reported to Wheeling Hospital Emergency Department and was diagnosed with a right shoulder strain.
The physician opined that it was an occupational injury which had aggravated a prior injury and/or disease and the attending physician indicated that he would not miss four or more days of work.
Gorshe was treated by Dr. C. Clark Milton for the period of June 2, 2015, through Feb. 16, 2016. Gorshe was initially seen for right shoulder discomfort and he had reported that he was shoveling and throwing material above his shoulder height and had experienced sudden pain in his right shoulder.
Gorshe reported a previous injury in 2002 to his shoulder, which required arthroscopic repair of the rotator cuff. Milton’s impression was acute right shoulder sprain with possible rotator cuff re-injury.
The physician advised Gorshe he had multifactorial issues, some of which were degenerative in nature. He suggested injections and physical therapy and also wanted him to work on modified duty.
Gorshe applied for temporary total disability on April 25, 2015, for the period of June 1, 2015, through July 1, 2016.
On June 16, 2015, the claims administrator rejected Gorshe’s application for benefits. On Jan. 21, 2016, the Office of Judges reversed the claims administrator’s denial of the claim and held it compensable for a right shoulder strain.
The Office of Judges determined that Gorshe was entitled to temporary total disability benefits from June 2, 2015, through Nov. 23, 2015. The Office of Judges noted that it was undisputed that Gorshe’s right shoulder condition was not simply a right shoulder sprain but is the result of many different issues.
“The Office of Judges pointed out that the period of temporary total disability benefits suggested by Dr. Milton exceed what would normally be considered a reasonable recovery time for a right shoulder sprain, which is three to six weeks under West Virginia Code of State Rules § 85-20 (2006),” the decision states. “However, the Office of Judges justified a departure from the standard because at the time of the injury he was sixty and had a history of right shoulder problems.”
The Office of Judges supported its position by noting that prior to the injury Gorshe was able to perform his work activities, whereas after the compensable injury, he was not. Gorshe was not offered any alternative work within the restrictions proposed by Milton and the Office of Judges concluded that the benefits should be terminated on Nov. 23, 2015, when Dr. D. Marra opined that Gorshe had received little, if any, benefit from physical therapy or injections.
The Board of Review adopted the findings of the Office of Judges and affirmed its order.
“After review, we agree with the findings of the Office of Judges as affirmed by the Board of Review,” the decision states. “The Office of Judges justified its departure from the treatment guidelines under West Virginia Code of State Rules § 85-20, because he was advanced in age and had previous shoulder issues.”
The Office of Judges supported its temporary total disability termination date by adopting Marra’s report, which found that other modalities of treatment besides surgery were not of further assistance.
“For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record,” the decision states. “Therefore, the decision of the Board of Review is affirmed.”
W.Va. Supreme Court of Appeals case number: 17-0605
