Appeal Nos. 2050966 & 2051052) (Claim No. 2015030953)
Murray American Energy, Inc., by Aimee M. Stern, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Thomas R.
Whitfield, by M. Jane Glauser, its attorney, filed a timely
issues on appeal are whether contusion of the knee is the
proper compensable diagnosis and whether the claim was
properly closed for temporary total disability benefits. On
June 9, 2015, the claims administrator held the claim
compensable for a contusion of the knee only. The Office of
Judges modified the decision in its November 23, 2015, Order
and ordered the claim be held compensable for a tibial
plateau fracture and torn medial meniscus and ordered the
payment of temporary total disability benefits. On August 5,
2015, the claims administrator closed the claim for temporary
total disability benefits. In its January 15, 2016, Order,
the Office of Judges reversed the decision and ordered
temporary total disability benefits be paid from May 15,
2015, through December 30, 2015, and thereafter as
established by the medical evidence. Both Orders were
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 that the Board of Review's decision is
based upon a material misstatement or mischaracterization of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Whitfield, a utility man, injured his right knee on April 25,
2015, when his right knee was jerked and banged while he was
operating a bulldozer. Mr. Whitfield reported the injury on
May 13, 2015, and was treated at Corporate Health by Ross
Tennant, FNP. Mr. Whitfield provided a history of driving a
bulldozer on April 25, 2015, and repeatedly striking his
right knee off the metal frame of the bulldozer. He continued
to work for the next two weeks even though he had a
significant amount of swelling and discomfort in the knee.
Upon examination, Mr. Tennant noted a small amount of diffuse
edema in the right knee. Mr. Whitfield had full extension of
the knee and his flexion was only reduced by about five
degrees. He had a stable gait. A right knee x-ray showed
large knee joint effusion and mild degenerative change. Mr.
Tennant diagnosed a right knee contusion. The claim was held
compensable for a contusion of the right knee only on a no
lost time basis.
knee MRI was performed on May 19, 2015. It revealed a medial
tibia plateau fracture with corresponding contusion to the
medial femoral condyle and bone marrow edema, medial meniscal
tear, large joint effusion, sprain or partial tear of lateral
collateral ligament near its femoral insertion, and
degenerative versus sprain of both anterior and posterior
cruciate ligaments. Mr. Tennant concluded the MRI findings
seemed severe compared to the mechanism of injury described
by Mr. Whitfield. When presented with this information, Mr.
Whitfield provided a history of having fallen to the ground
while working on a barge a few weeks before he changed
positions and started driving the bulldozer. The symptoms in
his right knee became progressively worse while riding inside
Tissenbaum, M.D., treated Mr. Whitfield on May 27, 2015. Mr.
Whitfield complained of constant pain and a popping sound
when bending his knee. Dr. Tissenbaum noted effusion and
tenderness, as well as decreased flexion upon examination. He
aspirated the right knee. Dr. Tissenbaum diagnosed fractured
tibial plateau and medial meniscus tear and ordered physical
therapy. Mr. Whitfield followed-up with Dr. Tissenbaum on
July 8, 2015. Mr. Whitfield stated he had a lot of pain
during physical therapy and that he did not think it was
helping. The diagnoses of tibial plateau and medial meniscus
tear remained the same. In his opinion, most of the problem
was related to the medial meniscus tear, as well as
underlying degenerative joint disease.
claims administrator closed the claim for temporary total
disability benefits on August 5, 2015, as no medical evidence
showing Mr. Whitfield had been disabled more than three days
due to the injury had been received. On August 6, 2015, Dr.
Tissenbaum completed a diagnosis update requesting the
addition of tibia fracture and medial meniscus tear as
secondary conditions. He did not provide any clinical finding
on which the diagnosis was based, nor did he advise how the
requested conditions related to the injury. Mr. Whitfield
testified via affidavit on August 7, 2015. He stated he had
no problems with his right knee prior to the injury. However,
since the injury he had experienced pain around and deep into
his knee. He also had difficulty raising his foot.
August 20, 2015, Dr. Tissenbaum completed a medical statement
answering questions posed by Mr. Whitfield's counsel. He
stated that based on his May 27, 2015, examination Mr.
Whitfield sustained a work injury and tore his meniscus. On
August 25, 2015, Spencer McIlvain, Human Resources
Coordinator, provided a written statement in which he stated
that he spoke to Mr. Whitfield on May 19, 2015, regarding the
significant conditions documented by the MRI and how they
could have occurred by him banging his knee on the bulldozer.
Mr. Whitfield told Mr. McIlvain he had fallen on a barge at
work a while back and that he did not report the incident.
Unger, M.D., performed a medical records review on August 31,
2015. He opined that the mechanism of injury, Mr. Whitfield
banging his knee while jerking on a bulldozer, was
inconsistent with the findings on the May 19, 2015, MRI. Mr.
Whitfield would have hit the lateral aspect (outside) of the
knee, not the medial aspect (inside) of the knee if it was
jerking. The tibia plateau fracture and meniscus tear were
located on the medial aspect of the knee. A tibial plateau
fracture is generally a high energy axial injury, not an
injury from lateral banging. In Dr. Unger's opinion,
based on Mr. Whitfield's prior lumbar fusions and left
total hip replacement, he was experiencing multiple
orthopedic issues secondary to degenerative changes. In his
opinion, Mr. Whitfield sustained a right knee contusion due
to the work injury. The knee contusion would not have caused
Mr. Whitfield to be disabled for more than three days of
Fadel, M.D., performed a medical records review on October 5,
2015, in relation to Dr. Tissenbaum's August 6, 2015,
diagnosis update request. Dr. Fadel understood Mr. Whitfield
had a blunt force injury and fall on the right knee joint on
April 25, 2015. He stated that in an injury where the partly
flexed knee joint was subjected to weighted forces in varus
alignment, the medial femoral condyle is driven into the
medial tibial plateau causing fracture. This may also result
in the medial meniscus tear and a sprain. Therefore, in his
opinion, the tibial plateau fracture and torn meniscus were
related to the compensable injury.
claims administrator added fracture of the tibia/fibula and
tear of medial cartilage or meniscus of the knee as
compensable conditions on October 6, 2015. In a separate
Order that same day, the claims administrator authorized
arthroscopic surgery of the right knee. On October 14, 2015,
the claims administrator granted temporary total disability
benefits for the period from May 15, 2015, through August 12,
2015. In a separate Order that same day, the claims
administrator granted temporary total disability benefits for
the period from August 13, 2015, through November 10, 2015.
October 20, 2015, Dr. Tissenbaum performed arthroscopic
surgery on the right knee. The operative report documented
severe degenerative joint disease, including grade four
changes over the entire tibial plateau on the medial side,
grade four changes over the femoral condyle, no articular
surface on the femoral condyle, as well as the meniscus being
torn and degenerated anteriorly and posteriorly. Based on the
operative report, on October 29, 2015, the claims
administrator rescinded the October 6, 2015, decision and
reinstated the June 9, 2015, decision which held the claim
compensable for a knee contusion only on a no lost time
basis. On August 5, 2015, the claims administrator closed the
claim for temporary total disability benefits.
Office of Judges modified the claims administrator's June
9, 2015, decision holding the claim compensable for a
contusion of the knee on November 23, 2015, and ordered the
tibial plateau fracture and torn medial meniscus be added as
compensable conditions as requested by Dr. Tissenbaum. It
also ordered payment of temporary total disability benefits.
The Office of Judges relied on the ...