Donald R. Endicott v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
DONALD R. ENDICOTT, October 24, 2025
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 25-ICA-147 (JCN: 2023016774)

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Donald R. Endicott appeals the March 11, 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 order, which denied Mr. Endicott’s
request to reopen the claim for temporary total disability (“TTD”) benefits.

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 or Disease form dated March 7, 2023. Mr. Endicott indicated that he sustained an
injury to his right shoulder from picking up straps on March 6, 2023. Per the physicians’
section of the form, Mr. Endicott sustained a right shoulder sprain as a direct result of an
occupational injury.

Also on March 7, 2023, Mr. Endicott was seen at MedExpress. Mr. Endicott
presented with right shoulder pain after picking up a strap on March 6, 2023. The physical
examination of the cervical spine revealed normal range of motion. The assessment was
pain in the right shoulder joint and a sprain of the right shoulder.

On April 8, 2023, Mr. Endicott underwent an MRI at Reynolds Memorial Hospital,
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.

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Mr. Endicott is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
Esq. ACNR is represented by Aimee M. Stern, Esq.

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Mr. Endicott was seen by Frederic Pollock, M.D., at CAMC Orthopedic Trauma
Group on April 25, 2023. Mr. Endicott reported that he could not move his arm without
extreme pain. Dr. Pollock assessed right shoulder pain and recommended physical therapy.
On the same date, 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 small bony exostosis of the inferior clavicle at the
coracoclavicular ligament.

On July 26, 2023, Mr. Endicott underwent an MRI of the right shoulder, which
revealed a split tear in the long head of the biceps tendon in the bicipital groove, a 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 a stress
related change or a contusion. On October 12, 2023, Mr. Endicott underwent an x-ray of
the right shoulder, which revealed mild glenoid and acromioclavicular joint osteoarthritis.

Mr. Endicott began treatment with Chad Lavender, M.D., on January 25, 2024. Mr.
Endicott presented with neck and right shoulder pain, and Dr. Lavender noted that Mr.
Endicott had significant radicular symptoms with numbness and tingling in the right upper
extremity. The assessment was cord compression of the cervical spine with associated
radiculopathy and possible rotator cuff tendinopathy. Dr. Lavender indicated that he could
not fully make the diagnosis because he did not have the MRI records.

On February 27, 2024, the claim administrator held the claim compensable for an
incomplete rotator cuff tear and rupture of the right shoulder based on a request submitted
by Dr. Pollock. By separate order, also dated February 27, 2024, the claim administrator
reopened the claim for temporary total disability (“TTD”) benefits.

Mr. Endicott followed up with Dr. Lavender regarding his right shoulder pain and
neck pain on February 29, 2024. Dr. Lavender assessed cervicalgia with multilevel
spondylosis and adhesive capsulitis of the right shoulder. Dr. Lavender opined that no
surgical intervention was needed for the right shoulder. After a review of the MRI of the
cervical spine and right shoulder, Dr. Lavender opined that Mr. Endicott’s symptoms were
related to the cervical spine. Dr. Lavender recommended an evaluation by Jeffery Kim,
M.D.

By order dated March 7, 2024, the claim administrator authorized twenty-eight
sessions of physical therapy for the right shoulder. By order dated April 3, 2024, the claim
administrator denied cervical radiculopathy as a compensable condition in the claim. Mr.
Endicott protested this order to the Board.

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On May 30, 2024, Prasadarao Mukkamala, M.D., performed an independent
medical evaluation of Mr. Endicott, who presented with pain in the right shoulder and
numbness in the right hand. Dr. Mukkamala diagnosed a strain of the right shoulder and
opined that Mr. Endicott had reached maximum medical improvement (“MMI”) from the
compensable injury. Dr. Mukkamala opined that Mr. Endicott did not require any
additional diagnostic studies or treatment.

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

By order dated July 12, 2024, the claim administrator closed the claim for TTD
benefits because additional evidence was not received substantiating the continuation of
benefits. Mr. Endicott protested this order to the Board.

Mr. Endicott followed up with Dr. Lavender on September 30, 2024, regarding his
right shoulder. Dr. Lavender noted that Mr. Endicott had cervical changes on his MRI and
that injections and therapy were tried. Mr. Endicott reported that he did not have any
cervical problems before the compensable injury. Dr. Lavender assessed cervicalgia and
right shoulder impingement with a long head of the biceps tendon tear. Dr. Lavender
indicated that most of Mr. Endicott’s symptoms were coming from his neck and
recommended that he be excused from work for the next two months.

Mr. Endicott submitted a Claim Reopening Application dated September 30, 2024,
which requested additional TTD benefits. Dr. Lavender reported a diagnosis of cervical
radiculopathy and opined that Mr. Endicott had sustained an aggravation or progression of
his disability since being released to return to employment. Dr. Lavender opined that Mr.
Endicott was TTD from March 7, 2023, through June 4, 2024, and from September 30,
2024, through December 2, 2024. Dr. Lavender opined that the cervical injury was a direct
result of the injury covered by the claim.

On November 14, 2024, Mr. Endicott was deposed regarding his claim. Mr. Endicott
testified that he saw Dr. Lavender on September 30, 2024, because his right arm would
hardly move due to pain. Mr. Endicott stated that since he went off work on September 30,
2024, his condition had worsened. On cross-examination, Mr. Endicott testified that Dr.
Lavender took him off work because of pain that started in his neck and moved down into
his right shoulder and arm. Mr. Endicott stated that he had neck pain at the time of the
deposition.

Mr. Endicott was seen by Dr. Kim on November 15, 2024. Mr. Endicott reported
right-sided neck pain that radiated into the shoulder and down the arm with severe pain in
the elbow. The assessment was cervical stenosis, cervical radiculopathy, and right shoulder

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pain. Dr. Kim recommended that Mr. Endicott continue with orthopedics for shoulder
management and see pain management for an evaluation of the cervical spine.

On December 2, 2024, Dr. Mukkamala issued a supplemental report regarding Mr.
Endicott’s claim. After reviewing additional records, Dr. Mukkamala remained of the
opinion that Mr. Endicott had reached MMI for the compensable injury and that his cervical
spine symptoms were not causally related to the compensable injury. Dr. Mukkamala
opined that there was no credible medical evidence that Mr. Endicott had sustained an
aggravation or progression of the compensable right shoulder injury. Further, Dr.
Mukkamala indicated that Mr. Endicott was not temporarily and totally disabled.

By order dated January 15, 2025, the Board affirmed the claim administrator’s order
dated April 3, 2024, which denied cervical radiculopathy as a compensable condition in
the claim and denied authorization for pain management.2 The Board found that Mr.
Endicott did not establish that cervical radiculopathy is causally related to the compensable
injury or to the events which caused the compensable injury.

By order dated March 11, 2025, the Board affirmed the claim administrator’s
October 3, 2024, order that denied reopening of the claim for TTD benefits. The Board
found that Mr. Endicott did not establish an aggravation or progression of the compensable
injury or facts not previously considered, which would entitle him to additional TTD
benefits. 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;

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In Endicott v. ACNR Resources, Inc., No. 25-ICA-68, 2025 WL 2491259 (W. Va.
Ct. App. Aug. 29, 2025) (memorandum decision) this Court affirmed the Board’s January
15, 2025, order, which denied the addition of cervical radiculopathy as a condition in the
claim.

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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.

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 was clearly wrong in affirming the
claim administrator’s denial of his request to reopen the claim for TTD benefits. Further,
Mr. Endicott asserts that Dr. Lavender is the medical professional of record in the best
position to determine whether he experienced an aggravation and/or progression of his
condition. Finally, Mr. Endicott avers that he had no history of cervical radiculopathy, and
thus, his March 6, 2023, injury must be considered the triggering event that caused him to
develop cervical radiculopathy. We disagree.

In order to reopen a claim for TTD benefits, a claimant must show an aggravation
or progression of a compensable condition, or facts not previously considered. See W. Va.
Code § 23-5-2 (2005) and § 23-5-3a (2022). Moreover, in Harper v. State Workmen’s
Compensation Commissioner, 160 W. Va. 364, 234 S.E.2d 779 (1977), the Supreme Court
of Appeals of West Virginia held that for a reopening of a workers’ compensation claim,
“the claimant must show a prima facie cause, which means nothing more than any evidence
which would tend to justify, but not to compel the inference that there has been a
progression or aggravation of the former injury.” Id. at 364, 234 S.E.2d at 780, syl.

Here, the Board determined that Mr. Endicott failed to establish an aggravation or
progression of the compensable injury or any new facts that would entitle him to additional
TTD benefits in the claim. The Board found that the reopening application completed by
Dr. Lavender was based on the diagnosis of cervical radiculopathy. However, the only
compensable components of the claim are related to the right shoulder. The Board did not
err in finding that Mr. Endicott is unable to return to work due to his non-compensable
cervical condition, rather than the compensable injury. Further, Dr. Mukkamala found Mr.
Endicott to be at MMI for the compensable right shoulder injury on May 30, 2024. In his
brief, Mr. Endicott states that the outcome of this appeal will turn on the outcome of the
appeal decided by this court in Endicott v. ACNR Resources, Inc., No. 25-ICA-68, 2025
WL 2491259 (W. Va. Ct. App. Aug. 29, 2025) (memorandum decision), in which we
affirmed the Board’s denial of the addition of cervical radiculopathy as a condition in the
claim. We agree. Since cervical radiculopathy was not added to his claim, the Board’s
decision to affirm the claim administrator’s denial of TTD benefits was not clearly wrong.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Endicott failed to establish an aggravation or progression of the compensable injury or facts
not previously considered which would entitle him to additional TTD benefits. As set forth
by the Supreme Court of Appeals of West Virginia, “[t]he ‘clearly wrong’ and the ‘arbitrary

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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). With this deferential
standard of review in mind, we cannot conclude that the Board was clearly wrong in
affirming the claim administrator’s order denying a reopening of the claim for additional
TTD benefits.

Accordingly, we affirm the Board’s March 11, 2025, order.

Affirmed.

ISSUED: October 24, 2025

CONCURRED IN BY:

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

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