(BOR
Appeal No. 2051264) (Claim No. 2015030953)
MEMORANDUM DECISION
Petitioner
Murray American Energy, Inc., by Aimee Stern and Denise
Pentino, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Thomas R.
Whitfield, by M. Jane Glauser, his attorney, filed a timely
response.
The
issues presented in the instant appeal are Mr.
Whitfield's request to add a tibial plateau fracture and
medial meniscus tear as compensable components of his claim
for workers' compensation benefits, his request for
authorization of additional temporary total disability
benefits, and his request for authorization of a right knee
arthroscopy. On October 29, 2015, the claims administrator
issued a decision correcting its October 14, 2015, decision
holding Mr. Whitfield's claim for workers'
compensation benefits compensable on a lost-time basis and
reinstated its initial June 9, 2015, decision holding the
claim compensable for a right knee contusion on a
no-lost-time basis. In a second October 29, 2015, decision,
the claims administrator corrected its October 6, 2015,
decision adding a tibial plateau fracture and medial meniscus
tear as compensable diagnoses to reflect that the diagnoses
are not compensable. In a third October 29, 2015, decision,
the claims administrator corrected its October 14, 2015,
decision granting temporary total disability benefits to
reflect that temporary total disability benefits are denied.
In a fourth October 29, 2015, decision, the claims
administrator corrected its October 21, 2015, decision
granting additional temporary total disability benefits to
reflect that temporary total disability benefits are denied.
In a fifth October 29, 2015, decision, the claims
administrator corrected its October 6, 2015, decision
granting authorization for a right knee arthroscopy to
reflect that authorization for the arthroscopy has been
denied. Finally, on November 4, 2015, the claims
administrator declared an overpayment of $15, 523.26 arising
from the claims administrator's October 29, 2015,
decisions denying authorization of temporary total disability
benefits. In its decision dated April 11, 2016, the Office of
Judges reversed the six claims administrator's decisions
in light of two prior Orders from the Office of Judges adding
additional compensable components to Mr. Whitfield's
claim and granting him additional temporary total disability
benefits. This appeal arises from the Board of Review's
Final Order dated September 28, 2016, in which the Board
affirmed the Order of the Workers' Compensation Office of
Judges. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
This
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.
Mr.
Whitfield injured his right knee on April 25, 2015. On May
13, 2015, he completed a Report of Injury in which he
indicated that his right knee was injured when it struck the
interior frame of a piece of heavy machinery. Mr.
Whitfield's claim for workers' compensation benefits
was initially held compensable for a right knee contusion on
a no-lost-time basis. However, an MRI performed on May 19,
2015, revealed a medial tibial plateau fracture, a tear of
the medial meniscus, a large joint effusion, a sprain or
partial tear of the lateral collateral ligament, and
degeneration of both the anterior and posterior cruciate
ligaments. Also on May 19, 2015, Ross Tennant, FNP, Mr.
Whitfield's primary care provider, reviewed the results
of the right knee MRI and opined that the findings revealed
via the MRI are exceedingly severe in comparison with the
mechanism of injury described by Mr. Whitfield, namely
striking his knee on the interior of a piece of heavy
machinery.
Orthopedic
surgeon Allan Tissenbaum, M.D., evaluated Mr. Whitfield on
May 27, 2015. Dr. Tissenbaum diagnosed Mr. Whitfield with a
fractured tibial plateau and a medial meniscus tear, and
initially recommended conservative treatment with physical
therapy. On August 6, 2015, Dr. Tissenbaum authored a
diagnosis update request in which he listed Mr.
Whitfield's primary diagnosis as a tibia fracture and his
secondary diagnosis as a medial meniscus tear. Additionally,
Dr. Tissenbaum authored a medical statement on August 20,
2015, in which he indicated that a right knee arthroscopy is
medically necessary for the treatment of the April 25, 2015,
injury.[1]
Ira
Ungar, M.D., performed a records review on August 31, 2015.
He opined that the mechanism of injury described by Mr.
Whitfield is inconsistent with the findings of the May 19,
2015, right knee MRI. Dr. Ungar opined that simply striking a
knee against an object cannot cause a fracture of the tibial
plateau. Finally, he opined that Mr. Whitfield was not
temporarily totally disabled for more than three days as a
result of the compensable right knee contusion.
Robert
Fadel, M.D., performed a second records review on October 5,
2015. At the beginning of his report, Dr. Fadel characterized
the April 25, 2015, injury as a blunt force injury and fall
onto the right knee. He then opined that that an injury
during which a partially flexed knee joint is subjected to
weighted forces in varus alignment can result in a tibial
plateau fracture, a meniscus tear, and a sprain. Dr. Fadel
further opined that the diagnosis of a tibial plateau
fracture and torn medial meniscus are causally related to the
April 25, 2015, injury.
On
October 29, 2015, the claims administrator issued a decision
correcting its October 14, 2015, decision holding Mr.
Whitfield's claim for workers' compensation benefits
compensable on a lost-time basis and reinstated its initial
June 9, 2015, decision holding the claim compensable for a
right knee contusion on a no-lost-time basis. In a second
October 29, 2015, decision, the claims administrator
corrected its October 6, 2015, decision adding a tibial
plateau fracture and medial meniscus tear as compensable
diagnoses to reflect that the diagnoses are not compensable.
In a third October 29, 2015, decision, the claims
administrator corrected its October 14, 2015, decision
granting temporary total disability benefits to reflect that
temporary total disability benefits are denied. In a fourth
October 29, 2015, decision, the claims administrator
corrected its October 21, 2015, decision granting additional
temporary total disability benefits to reflect that temporary
total disability benefits are denied. In a fifth October 29,
2015, decision, the claims administrator corrected its
October 6, 2015, decision granting authorization for a right
knee arthroscopy to reflect that authorization for the
arthroscopy has been denied. Finally, on November 4, 2015,
the claims administrator declared an overpayment of $15,
523.26 arising from the claims administrator's October
29, 2015, decisions denying authorization of temporary total
disability benefits.
The
Office of Judges reversed all five of the October 29, 2015,
claims administrator's decisions, and also reversed the
November 4, 2015, claims administrator's decision in
consideration of its prior Orders dated November 23, 2015,
and January 15, 2016, in which it added additional
compensable diagnoses to Mr. Whitfield's claim and
granted him additional temporary total disability benefits,
respectively. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated
September 28, 2016. On appeal, Murray American Energy, Inc.,
asserts that the evidence of record demonstrates that Mr.
Whitfield did not sustain a tibial plateau fracture and
medial meniscus tear as a result of the April 25, 2015,
injury and, therefore, is not entitled to the authorization
of additional medical treatment or temporary total disability
benefits.
In its
prior Order dated November 23, 2015, the Office of Judges
added a tibial plateau fracture and torn medial meniscus as
compensable components of the claim in reliance on Dr.
Fadel's opinion. In its prior Order dated January 15,
2016, the Office of Judges granted temporary total disability
benefits from May 15, 2015, through December 30, 2015, and
thereafter as determined by the medical evidence of record.
In granting temporary total disability benefits, the Office
of Judges looked to its November 23, 2015, Order adding a
tibial plateau fracture and torn medial meniscus as
compensable diagnoses. The Office of Judges then found that
these diagnoses required additional treatment, including
surgery, which necessitated the authorization of temporary
total disability benefits.
In the
instant appeal, the Office of Judges reversed the five
October 29, 2015, claims administrator's decisions, and
also reversed the November 4, 2015, claims
administrator's decision, solely in reliance on its
November 23, 2015, and January 15, 2016, Orders. However, in
Murray American Energy, Inc. v. Thomas R. Whitfield,
No. 16-0567 (W.Va. Supreme Court, May 5, 2017)(memorandum
decision), we reversed the Board of Review's affirmation
of the November 23, 2015, and January 15, 2016, Office of
Judges' Orders based upon our determination that the
Board of Review's decision was based upon a material
misstatement or mischaracterization of the evidentiary
record. Specifically, we found that the Office of Judges'
and Board of Review's reliance upon the opinion of Dr.
Fadel was misplaced inasmuch as Dr. Fadel's opinion was
based upon an incorrect understanding of the circumstances of
the April 25, 2015, injury. We noted that Dr. Fadel
characterized the injury as a blunt force injury and fall,
whereas Mr. Whitfield has clearly stated that the injury
occurred when he struck his leg on the interior of a piece of
heavy machinery. Therefore, in light of our decision in
Appeal No. 16-0567, it is clear that the decision of the
Board of Review affirming the Office of Judges' reversal
of the six claims administrator's decisions must now be
reversed.
For the
foregoing reasons, we once again find that the decision of
the Board of Review is based upon a material misstatement or
mischaracterization of the evidentiary record. Therefore, the
decision of the Board of Review is reversed and the case is
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