Todd Eagon v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

TODD EAGON, FILED
Claimant Below, Petitioner February 2, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-113 (BOR Appeal No.: 2057940) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
(JCN: 2021024362)

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Todd Eagon appeals the August 19, 2022, order of the Workers’
Compensation Board of Review (“Board”). Mr. Eagon’s employer, Respondent ACNR
Resources, Inc. (“ACNR”), filed a timely response. 1 Mr. Eagon did not file a reply. The
issue on appeal is whether the Board erred in affirming the OOJ’s order that affirmed the
claim administrator’s order denying the authorization of a left total elbow replacement and
preoperative testing.

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.

On June 4, 2021, as Mr. Eagon was working for ACNR as a mechanic/electrician,
he was injured when a one-hundred-pound rock fell onto his left shoulder and back,
knocking him forward and causing him to land on his left side. Mr. Eagon was taken to the
Wheeling Hospital Emergency Department complaining of left shoulder and elbow pain,
as well as neck and lower back stiffness.

The ER provider found normal strength and a deformity of the left shoulder with a
possible dislocation; deformity, swelling, and tenderness of the left elbow; and mild
cervical spine tenderness. A chest x-ray performed in the ER was negative; a cervical spine
CT scan showed degenerative changes and no acute fracture; and a left shoulder x-ray
showed widening of the acromioclavicular joint space, and a joint effusion with the

Petitioner is represented by William C. Gallagher, Esq. Respondent is represented
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by Aimee M. Stern, Esq.

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potential for an occult fracture. Mr. Eagon was diagnosed with fractures of the left elbow,
distal humerus, and radial head, and left AC separation.

On June 7, 2021, Mr. Eagon was seen by Elizabeth Snyder, PA. He complained of
pain in his left elbow and left forearm and reported that his neck was currently more stiff
than painful. Mr. Eagon told her that he underwent left shoulder surgery five years ago.
Ms. Snyder diagnosed Mr. Eagon with contusion/sprain of the left shoulder, fracture of the
left elbow, cervical strain, and AC separation of the left shoulder. Ms. Snyder ordered a
left elbow MRI to confirm the fractures.

On June 11, 2021, Mr. Eagon underwent a left elbow x-ray. It documented
degenerative narrowing with effusion suggesting an occult fracture of the humerus. The
same day, Mr. Eagon was seen by Jeffrey M. Abbott, D.O., an orthopedic surgeon. Dr.
Abbott reviewed Mr. Eagon’s x-rays from June 4 and June 11. Dr. Abbott’s diagnoses were
primary osteoarthritis of the left elbow and left elbow pain.

Mr. Eagon filed a claim for workers’ compensation benefits, and on June 11, 2021,
the claim administrator held the claim compensable for unspecified fracture of lower end
of the humerus and displaced fracture of the head of the left radius. The order specifically
held the condition of cervicalgia to be not compensable.

Mr. Eagon followed up with Dr. Abbott on June l7, 2021. Dr. Abbott’s diagnoses
were primary osteoarthritis of the left elbow, closed displaced fracture of the lateral
condyle of the left humerus, and tear of the left rotator cuff. He referred Mr. Eagon to
Christopher C. Schmidt, M.D., an orthopedic surgeon, for evaluation of his elbow.

Mr. Eagon was evaluated on July 15, 2021, by Dr. Schmidt. Dr. Schmidt performed
a physical evaluation on Mr. Eagon and ordered a left elbow CT scan. Dr. Schmidt’s
diagnoses were severe osteoarthritis of the left elbow and possible small avulsion fracture
over the left lateral humeral condyle. Mr. Eagon reported suffering from preexisting elbow
arthritis and limited range of motion in his elbow. Dr. Schmidt provided Mr. Eagon a
cortisone injection and recommended occupational therapy for range of motion and
strengthening of the left elbow.

Mr. Eagon underwent a 3D CT scan rendering of his left elbow on July 16, 2021.
The findings were as follows: severe osteoarthritis of the left elbow and no acute fractures.

By order dated August 3, 2021, the claim administrator denied authorization for the
upper extremity CT scan and referral to occupational therapy, because the treatment was
for osteoarthritis of the left elbow, which is not a compensable condition in this claim.

On August 6, 2021, Dr. Schmidt requested authorization for surgery and pre-
operative testing. On August 18, 2021, the claim administrator issued an order denying

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authorization for the surgery and pre-operative testing because the treatment would be for
osteoarthritis, which is not a compensable condition in this claim. Dr. Schmidt performed
left elbow replacement surgery on Mr. Eagon on August 23, 2021. His post-operative
diagnoses were severe left ulnohumeral joint osteoarthritis, left elbow contracture, left
ulnar nerve neuritis, and left radiocapitellar joint osteoarthritis.

Prasadarao Mukkamala, M.D., preformed an independent medical examination on
Mr. Eagon on September 14, 2021. Mr. Eagon complained of soreness of the left elbow
and left shoulder. Dr. Mukkamala performed a physical examination and noted that Mr.
Eagon’s range of motion was normal, his motor examination was pain inhibited in the left
upper extremity, and the sensory examination was normal except for decrease of sensation
close to his surgical scar. Dr. Mukkamala’s diagnosis was contusion/strain of the left
elbow. He indicated that Mr. Eagon’s compensable injury had reached maximum medical
improvement, and he noted his disagreement with the compensable diagnoses. Dr.
Mukkamala opined that Mr. Eagon’s medical records reveal that he did not suffer a fracture
because the 3D CT scan performed on July 16, 2021, demonstrates that no fracture was
present. Dr. Mukkamala noted that Mr. Eagon has degenerative changes at the elbow, and
that the elbow replacement surgery was performed to treat his non-compensable pre-
existing arthrosis. Dr. Mukkamala concluded that Mr. Eagon does not require any
additional diagnostic studies or treatment for his compensable injury. He stated that Mr.
Eagon will not be able to return to work as a coal miner, but that this disability is unrelated
to the compensable injury. Dr. Mukkamala found that Mr. Eagon suffered no permanent
impairment as a result of his compensable injury.

On February 1, 2022, the OOJ affirmed the claim administrator’s order of August
18, 2021. The OOJ found that the evidence supports that Mr. Eagon suffers from pre-
existing advanced osteoarthritis of the left elbow, and that the elbow replacement surgery
was associated with that condition, not his compensable injury. The Board affirmed the
OOJ’s order on August 19, 2022, and Mr. Eagon 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;

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(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.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, ____ W. Va. ____, ____, ____ S.E. 2d
____, _____, 2022 WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

On appeal, Mr. Eagon argues that the elbow arthroplasty procedure was for pain
relief and did alleviate his pain, thus, it should be regarded as medically necessary and
reasonable. Mr. Eagon further argues that the OOJ should have given more weight to Dr.
Schmidt’s findings over those of Dr. Mukkamala due to Dr. Schmidt’s superior credentials.

After review, we conclude that the OOJ, as affirmed by the Board, did not err in
finding that Mr. Eagon has not established that the requested treatment, a total left elbow
replacement and preoperative testing, is related to the compensable diagnosis in this claim.
The OOJ found that the requested treatment is related to osteoarthritis, a noncompensable
diagnosis. The OOJ was not clearly wrong in affirming the denial of treatment
authorization for a noncompensable diagnosis.

Finding no error in the Board’s July 6, 2022, order, we affirm.

Affirmed.

ISSUED: February 2, 2023

CONCURRED IN BY:

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

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