Appeal No. 2050988, Claim No. 2015006141
Robert Poole, by Christopher J. Wallace, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Mountain State Carbon, by Aimee
M. Stern, its attorney, filed a timely response.
issue on appeal is whether Mr. Poole is entitled to have his
medial meniscus tear added as a compensable component of the
claim. On July 30, 2015, the claims administrator denied a
request to add the medial meniscus tear as a compensable
component of the claim. The Office of Judges affirmed the
decision in its December 10, 2015, Order. The Order was
affirmed by the Board of Review on May 20, 2016. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Poole, a millwright, was stepping down from a scissor lift on
August 26, 2014, when he twisted his left knee and fell to
the ground. He also completed a first report of injury and
was treated in the on-site dispensary on August 26, 2014. On
the first report of injury, Mr. Poole stated that he was
coming down the scissor lift and his left leg buckled when
his foot hit the ground. He had pain in the back of his knee,
and down to his left ankle and toe. When treated in the
dispensary, Mr. Poole provided the same description of the
injury. The records show his left knee was already swollen,
he had tenderness in the medial and lateral aspects of his
knee, and he was unable to walk. A left knee x-ray showed
degenerative changes with no dislocation or fracture. Mr.
Poole was diagnosed with a left knee sprain. The claim was
held compensable for a left knee sprain on August 29, 2014.
September 2, 2014, an MRI of the left knee revealed a radial
tear of the posterior root of the medial meniscus and a
partial rupture of a Baker's cyst. There was no
significant joint effusion. Mr. Poole was treated by Komar
Amin, M.D., on September 8, 2014. The history Mr. Poole
provided that day was that he was stepping down off of a
scissor lift, the steps were uneven, and his left knee
twisted. Dr. Amin noted the examination was limited by pain
and guarding of the left knee. Mr. Poole exhibited medial and
lateral joint line tenderness, as well as a slightly antalgic
gait. Dr. Amin recommended a left knee arthroscopy.
claims administrator denied authorization for the left knee
arthroscopy on September 16, 2014. On September 17, 2014, Dr.
Amin performed a left knee arthroscopy with partial medial
meniscectomy and chondroplasty of the patellofemoral and
medial compartments. The postoperative diagnoses were left
knee medial meniscus tear and aggravation of osteoarthritis.
Dr. Amin noted there was more osteoarthritis than suggested
by the imaging.
Poole was seen post-operatively by Dr. Amin on September 26,
2014. Mr. Poole had full range of motion of the left knee.
Dr. Amin advised him that he had more osteoarthritis than
originally thought and that this could be a concern for
continued pain in the future.
Louis, M.D., performed a medical records review on December
15, 2014. Dr. Louis stated in his report that he was not able
to conclude within a reasonable degree of medical certainty
that a medial meniscal tear injury occurred from stepping
down from the scissor lift. He stated that Mr. Poole had
degenerative findings including loose and unstable flaps of
articular cartilage on the lateral facet of the patella and
chondromalacia. In Dr. Louis's opinion, given Mr.
Poole's pre-existing degenerative findings, including
osteoarthritis, the medial meniscus tear was likely a
degenerative condition. In his opinion, the left knee surgery
performed by Dr. Amin was for treatment of chronic,
degenerative, non-work related conditions, not the work
Louis testified by deposition on March 10, 2015. During
cross-examination, he acknowledged that a person with
degenerative changes in the knee could still experience a
traumatic tear to the medial meniscus. He also acknowledged
that a twisting type injury could cause a meniscus tear.
However, a radial tear of the meniscus is more typically a
degenerative arthritic tear rather than a concentric tear
which runs along the same pattern as the curved rim of the
meniscus itself. In Dr. Louis's opinion, Mr. Poole
suffered from pre-existing left knee degenerative arthrosis.
March 17, 2015, Dr. Amin completed a diagnosis update. It
lists the primary diagnosis as a medial meniscus tear. Dr.
Amin stated Mr. Poole was re-injured in December of 2014 when
a locker fell on his knee. Dr. Amin did not recommend surgery
at that time. Mr. Poole was working full duty.
claims administrator denied the request to include the medial
meniscus tear as a compensable component of the claim on July
30, 2015. The claims administrator's decision was due to
the fact that no medical documentation that substantiated a
re-injury or testing that revealed an additional tear had
December 10, 2015, Order, the Office of Judges determined
that the question of whether Mr. Poole's torn meniscus
was pre-existing or attributable to the August 26, 2014,
injury became a question of the credibility of Drs. Amin and
Louis. It noted that Dr. Amin was the treating physician,
while Dr. Louis only performed a medical records review.
However, Dr. Louis's qualifications and report had been
placed in the record, and he also testified under oath, by
deposition, wherein he was subject to cross-examination. The
qualifications of Dr. Amin had not been placed in the record,
his medical records were not as comprehensive as Dr.
Louis's report, and his medical records did not address
the etiology of Mr. Poole's condition. Therefore, the
Office of Judges found that a preponderance of the credible
medical evidence did not demonstrate that Mr. Poole's
left knee medial meniscus tear was attributable to the
compensable injury and affirmed the claims
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its decision on
May 20, 2016. After review, we agree with the Board of
Review. Mr. Poole initially reported that he was stepping
down from a scissor lift and his left leg buckled when his
foot hit the ground. There was no mention of a twisting
injury until Mr. Poole was evaluated by Dr. Amin on September
8, 2014. Mr. Poole's initial report was completed within
minutes of the injury, and is therefore more reliable. Dr.
Louis attributed the meniscal tear to the pre-existing
arthritis, whereas Dr. Amin did not address the cause of the