CHARLESTON – The West Virginia Supreme Court of Appeals ruled that a third right shoulder surgery was rightfully denied in workers’ compensation claim.

Cecil E. Scott appealed the decision of the West Virginia Workers’ Compensation Board of Review. Scott was employed as a plumber with the Mercer County Board of Education.

The issue on appeal is whether a third right shoulder arthroscopic surgery is reasonable and necessary medical treatment for the compensable injury, according to the Feb. 23 memorandum decision.

The claims administrator denied the request for the surgery on Nov. 9, 2016. The Office of Judges affirmed the claims administrator in its March 17 order. The order was affirmed by the Board of Review on Aug. 28.

Scott injured his right shoulder on April 22, 2013, when he was unloading heavy pipe from a truck and the pipe fell, jerking his arm downward.

A right shoulder MRI performed on April 27, 2013, revealed a large full-thickness tear of the supraspinatus tendon with degenerative arthritic change impinging on the subacromial space significantly from the acromioclavicular joint, inflammatory change of the subscapularis tendon, intraosseous ganglion cyst at the insertion of the tendon into the proximal humerus and mild degenerative changes of the glenohumeral articular cartilage.

Scott sought treatment with Dr. Steven O’Saile, who performed a right shoulder open rotator cuff repair and right shoulder subacromial decompression on July 26, 2013.

On Feb. 11, 2014, another doctor performed an independent medical evaluation and noted that Scott complained of tenderness in the posterior aspect of the right shoulder. There was no significant tenderness in the acromioclavicular region, Cecil Scott had restricted range of motion. He believed that Scott had reached maximum medical improvement.

On April 3, 2014, Scott re-injured his right shoulder at work when he was using a wrench and felt a pop in the shoulder. A right shoulder MRI and arthrogram performed on April 17, 2014, showed full thickness supraspinatus and infraspinatus tendon tears with significant retraction of the torn tendons, subscapularis tendinopathy and a new superior labral tear.

On June 2, 2014, Scott underwent a second surgery which included a right shoulder arthroscopy with extensive debridement of the right shoulder including the labrum, biceps stump with rotator cuff and supraspinatus and infraspinatus tendons.

The previous doctor performed a second independent medical evaluation of Scott on Sept. 23, 2014, and again, opined that Scott had reached maximum medical improvement and there was no need for additional medical treatment.

A third doctor performed an independent medical evaluation on July 14, 2015, and also believed Scott had reached maximum medical improvement.

On Feb. 29, 2016, Scott was seen in consultation by Dr. Gary McCarthy, an orthopedic surgeon, and, after an MRI, recommended a shoulder arthroscopy with rotator cuff repair. Another orthopedic surgeons weighed in and said the surgery was unreasonable since two prior attempts to repair had not worked.

On Nov. 9, 2016, the claims administrator denied a request for right shoulder arthroscopy with rotator cuff repair. The Office of Judges affirmed the claim administrator’s denial in its March 17 order.

“It noted Mr. Scott had previously undergone two arthroscopic surgeries which were apparently not successful,” the decision states. “The Office of Judges also gave more credence to the opinions of the orthopedic surgeons that had evaluated Mr. Scott than the opinions of the non-orthopedic surgeons who evaluated him.”

The Office of Judges found that three arthroscopic procedures appeared to be unusual. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its order on Aug. 28.

“After review, we agree with the Office of Judges as affirmed by the Board of Review,” the decision states. 

The orothpedic surgeon explained why the third arthroscopic procedure was not recommended, why he did not believe it would be successful and provided an alternative for that surgery, according to the decision.

“The Board of Review did not err in relying on Dr. Baratz’s opinion,” the decision states. “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.”

W.Va. Supreme Court of Appeals case number: 17-0862

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