HENRY T. KOSIKOWSKI, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and RG STEEL WHEELING, LLC, Employer Below, Respondent
of Review Appeal No. 2051460) (Claim No. 2012036843)
Henry T. Kosikowski, by Patrick K. Maroney, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by B. Allen Campbell, its attorney,
filed a timely response.
workers' compensation law, a claimant is entitled to
medically related and reasonably required treatment as long
as the treatment is for an injury or disease sustained in the
course of and resulting from employment. Henry T. Kosikowski
was working as a mobile equipment operator for RG Steel
Wheeling, LLC, when he overextended his right knee while
walking up a flight of stairs. We are asked to decide whether
Mr. Kosikowski is entitled to a second opinion for his right
knee. After a thorough review of the evidence of record, we
find that a second opinion is not medically related or
reasonably required for the compensable right knee sprain.
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 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
Kosikowski filed a report of injury on May 15, 2012, which
stated that he injured his right knee on May 2, 2012, walking
up a flight of stairs. He was diagnosed with right knee and
foot strain. It was also noted that the injury aggravated a
prior injury of calcaneal spur. The claims administrator
agreed and held the claim compensable for a right knee
of the right knee was taken in July of 2012 and showed a
small joint effusion without evidence of ligamentous or
meniscal tear. A right knee x-ray was normal. In August of
2015, Kumar Amin, M.D., stated in a treatment note that Mr.
Kosikowski complained of right knee pain in relation to his
work injury. He stated that his pain improved with rest and
over the counter medications but did not totally resolve. It
was noted that Mr. Kosikowski was treated for chronic knee
pain in 2006. No degenerative changes were seen on x-ray. He
was diagnosed with left knee sprain, possible mild stage
osteoarthritis, and possible medial meniscus tear.
months later, Dr. Amin noted that Mr. Kosikowski was seen for
right knee pain. Dr. Amin stated that he talked to Mr.
Kosikowski many years ago about a similar situation involving
the right knee. He did not believe arthroscopic surgery would
be beneficial and recommended a cortisone injection and
stopping physical therapy. X-rays of the right knee showed
minimal medial joint space narrowing. The assessment was
chronic right knee pain of uncertain etiology, most likely an
aggravation of mild osteoarthritis.
January of 2015, Dr. Amin again treated Mr. Kosikowski for
right knee pain. Dr. Amin noted that he and Mr. Kosikowski
discussed treatment options, including surgery. Mr.
Kosikowski decided to deal with the pain instead of having
surgery. Dr. Amin's diagnosis was most likely an
aggravation of mild osteoarthritis. Mr. Kosikowski then
requested permission for a second opinion. That request was
denied by the claims administrator on May 1, 2015.
months later, Timothy Sauber, M.D., treated Mr. Kosikowski
for sharp and aching pain in the right knee. Physical
therapy, exercise, and steroid injections were not helpful.
X-rays showed no significant degenerative changes in either
knee. Dr. Sauber wanted a repeat MRI to evaluate for the
presence of a lesion noted on a prior MRI. If the MRI was
negative, Dr. Sauber opined that Mr. Kosikowski "would
be hard pressed to make a case for further treatments under
his work comp injury."
Kosikowski was referred for an independent medical evaluation
that was performed by ChuanFang Jin, M.D., on November 4,
2015. She noted no joint swelling, enlargement, or deformity
on examination. Range of motion appeared to be normal. The
assessment was chronic right knee pain and degenerative
arthritis/arthrosis of the right knee. Dr. Jin concluded that
Mr. Kosikowski's sprain/strain triggered the symptoms of
preexisting degenerative arthritis. She noted that
degenerative arthritis is a chronic and progressive illness
that can be asymptomatic for a long period of time and
progress to intermittent symptoms with or without a trigger
or injury. She opined that Mr. Kosikowski's clinical
findings were consistent with the natural history of
degenerative arthrosis in the right knee and that his
symptoms started long ago, at least as far back as 2006. Dr.
Jin asserted that he should have reached maximum medical
improvement for his compensable sprain/strain within weeks to
a few months of the injury's occurrence. She further
stated that because the injury itself is not progressive or
latent, there is no indication for further testing or
treatment. Mr. Kosikowski had 0% impairment.
Kosikowski then testified in a deposition that he had seen
several physicians and got no results. He said that Dr. Amin
believed he had a mild case of osteoarthritis or a medial
meniscus tear. Dr. Amin prescribed physical therapy and
steroid injections, which did not help, and that is why he
wants a second opinion. Mr. Kosikowski saw Dr. Sauber on his
own and Dr. Sauber recommended an MRI.
Office of Judges affirmed the claims administrator's
denial of a request for a second opinion for the right knee
on July 18, 2016. The Office of Judges found that despite Dr.
Sauber's report recommending an MRI, a preponderance of
the evidence indicates the denial for a second opinion was
correct. The diagnostic evidence of record shows no traumatic
findings to the right knee. Mr. Kosikowski's main reason
for desiring a second opinion is continued pain. But, the
record shows that he has been diagnosed with chronic knee
pain by both Drs. Amin and Jin. Further, the record shows
that Mr. Kosikowski had an episode of chronic right knee pain
in the past. Per a report by Dr. Amin, Mr. Kosikowski had
seen Dr. Amin in 2006 and prior for chronic right knee pain.
At that time, Dr. Amin was unsure what exactly was causing
the knee pain. He noted that he had talked with Mr.
Kosikowski many years prior regarding a similar situation
involving the right knee. The Office of Judges found that Dr.
Jin determined in her evaluation that the symptoms are more
suggestive of degenerative arthritis than a meniscus tear.
Further, Dr. Amin assessed chronic right knee pain of
uncertain etiology, most likely an aggravation of mild
osteoarthritis. Dr. Jin reached the same conclusion. The
Office of Judges concluded that another opinion was not
necessary. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed
its Order on January 18, 2017.
appeal before this Court, Mr. Kosikowski argues that
conservative treatment has failed and his request for a
second opinion is therefore reasonable. The West Virginia
Office of the Insurance Commissioner argues that Mr.
Kosikowski sustained a simple sprain/strain right knee
injury, which would have healed in just a few weeks. It
further asserts that after the request for a second opinion,
Mr. Kosikowski was sent for an independent medical
evaluation, and therefore, his request to be re-evaluated has
already been granted.
review of the evidence of record and consideration of the
parties' arguments, we agree with the reasoning and
conclusions of the Office of Judges as affirmed by the Board
of Review. Mr. Kosikowski sustained a simple right knee
sprain/strain for which he was treated. A preponderance of
the evidence suggests that his ongoing problems are the
result of non-compensable degenerative arthritis. We
therefore find that the decision of the Board of Review is
not in clear violation of any constitutional or statutory
provision, nor is it clearly the result of erroneous
conclusions of ...