Frank Mayer v. City of Clarksburg

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
FRANK MAYER, June 27, 2025
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-462 (JCN: 2023021874)

CITY OF CLARKSBURG,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Frank Mayer appeals the October 30, 2024, order of the Workers’
Compensation Board of Review (“Board”). Respondent City of Clarksburg (“Clarksburg”)
filed a response.1 Mr. Mayer did not reply. The issue on appeal is whether the Board erred
in affirming the claim administrator’s order, which denied authorization for a right reverse
total shoulder arthroplasty.

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.

On May 24, 2023, while employed by Clarksburg, Mr. Mayer was mowing when
he slipped and fell, landing with his leg bent underneath him. Mr. Mayer was seen at the
United Hospital Center Emergency Room on the date of the injury, with a chief complaint
of left knee pain and right shoulder pain. The assessment was a patella fracture and right
shoulder strain. Mr. Mayer filed an Employees’ and Physicians’ Report of Occupational
Injury dated May 24, 2023, indicating that he suffered an injury to his right shoulder and
left leg when he was cutting grass on a hillside, and he fell when the bank gave way. The
physician’s portion was signed at United Hospital Center and notes an occupational injury
to the right shoulder and left knee.

On May 26, 2023, Mr. Mayer was seen by William Dahl, M.D., who assessed a
rupture of the left quadricep, a closed fracture of the left patella, and an injury of the right
shoulder. Dr. Dahl opined that Mr. Mayer would benefit from surgical fixation of the left

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Mr. Mayer is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
Esq. Clarksburg is represented by James W. Heslep, Esq.

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quadriceps rupture. The claim administrator issued an order dated May 31, 2023, holding
the claim compensable for a strain of muscle, fascia, and tendon involving the right
shoulder and upper arm; a strain of the left quadriceps; and a closed fracture of the left
patella.

Mr. Mayer was seen by Joshua Sykes, M.D., on November 27, 2023, for a follow
up subsequent to a left quadriceps repair performed on June 1, 2023. Mr. Mayer reported
a constant sharp, burning, and throbbing pain that he rated 5/10, and is worse with activity;
that he had numbness and tingling when sitting; that his knee continued to swell; and that
he was progressing with physical therapy. On December 28, 2023, Mr. Mayer underwent
a CT of his right shoulder, which had the impression of severe acromioclavicular and mild
glenohumeral osteoarthritis, retracted tears of the supraspinatus and infraspinatus tendons,
a suspected full thickness tear of the superior bundle of the subscapularis, and suspected
extensive degenerative labral tearing. On January 23, 2024, Dr. Sykes assessed Mr. Mayer
with status post tendon repair, rupture of left quadriceps, and right rotator cuff tear. Dr.
Sykes noted that Mr. Mayer has had a work-related shoulder tear for over twenty years that
had progressed from his previous MRI.

On February 7, 2024, Mr. Mayer was evaluated by Kelly Agnew, M.D. Dr. Agnew
noted that Mr. Mayer has a large retracted, irreparable right rotator cuff tear, that was
documented in 2003, and that this tear was never repaired. Dr. Agnew opined that there
was nothing on the recent CT scan with arthrogram of the right shoulder to suggest an acute
injury and that all the changes were chronic. Dr. Agnew further opined that there was no
evidence of a lingering strain and that the findings were expected from the chronic rotator
cuff disruption. Dr. Agnew found that Mr. Mayer had reached maximum medical
improvement from the shoulder and upper arm portion of his injury. Dr. Agnew noted that
Mr. Mayer had been offered total shoulder arthroplasty by Dr. Sykes, and he opined that
any such treatment would be for the underlying chronic pathology that dates back to 2003;
and that arthroplasty could not possibly be ascribed to any identifiable injury involving the
right shoulder from May 24, 2023.

Mr. Mayer followed up with Dr. Sykes on February 19, 2024, and Dr. Sykes again
noted that a right reverse total shoulder arthroplasty would be the best option for treatment
of Mr. Mayer’s shoulder. On March 11, 2024, Mr. Mayer was seen by Dr. Sykes for a
preoperative visit prior to right reverse shoulder arthroplasty. Dr. Sykes opined that Mr.
Mayer’s rotator cuff tear was not repairable due to the chronic nature and size of the tear
with massive retraction, and he noted that a large portion of the tear had been present since
2003.

The claim administrator issued an order dated April 23, 2024, denying the request
for a right reverse total shoulder arthroplasty based on the findings of the Encova Select
Grievance Board. Mr. Mayer protested this order. Mr. Mayer was deposed on August 5,

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2024. He testified that on May 24, 2023, he was cutting grass on a hillside when the bank
gave way, and he fell, rolling backward and landing in a creek and injuring his left knee
and right shoulder. Mr. Mayer stated that he was told by Dr. Sykes he would need a
complete reverse shoulder replacement. Mr. Mayer testified that he had right shoulder
problems in the 1990s that required physical therapy. Mr. Meyer further testified that prior
to his fall on May 24, 2023, he was not having any difficulties with his right shoulder.

On October 30, 2024, the Board affirmed the claim administrator’s order denying
authorization for a right reverse total shoulder arthroplasty. The Board found that the
requested surgery was not medically related and reasonably required medical treatment for
the compensable injury. Mr. Mayer now appeals the Board’s order.

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;
(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).

Mr. Mayer argues that the existence of a prior shoulder injury should not preclude
him from receiving treatment for his compensable injury. Mr. Mayer further argues that
because he had no recent shoulder symptoms or treatment prior to his compensable injury,
and he was working full duty with no restrictions, it then follows that his symptoms should
be attributed to the compensable injury.

Here, the Board determined that the requested right reverse total shoulder
arthroplasty is not medically related and reasonably required medical treatment for the

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compensable injury. The Board noted that the medical evidence establishes that Mr. Mayer
had a preexisting irreversible right rotator cuff tear first documented in 2003.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Mayer failed to establish that a right reverse total shoulder arthroplasty was medically
related and reasonably required for treatment of the compensable right shoulder strain. As
the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and
the ‘arbitrary 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 authorization for a right reverse
total shoulder arthroplasty.

Accordingly, we affirm the Board’s October 30, 2024, order.

Affirmed.

ISSUED: June 27, 2025

CONCURRED IN BY:

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

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