DANIEL T. SAVINO, Claimant Below, Petitioner
MYLAN PHARMACEUTICALS, INC., Employer Below, Respondent
Appeal No. 2051241) (Claim No. 2014012812)
Daniel T. Savino, by J. Robert Weaver, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Mylan Pharmaceuticals, Inc., by H. Dill
Battle III, its attorney, filed a timely response.
issue on appeal is whether the claim should be reopened for
consideration of additional temporary total disability
benefits. This appeal originated from the August 26, 2015,
claims administrator's decision denying a petition to
reopen the claim for temporary total disability benefits for
the period of October 2, 2014, through November 9, 2014. In
its March 22, 2016, Order, the Workers' Compensation
Office of Judges affirmed the decision. The Board of
Review's Final Order dated February 9, 2017, affirmed the
Order of the Office of Judges. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
T. Savino, an employee for Mylan Pharmaceuticals, Inc., was
injured in the course of his employment on October 22, 2013.
As a utility aid, Mr. Savino's job consisted of
monitoring a hopper with tablets and bottles. Mr. Savino sat
on a stool on a platform two feet above the ground. On the
night of the injury, there were some problems occurring with
the bottles and Mr. Savino had to jump off of the platform
several times over the course of the evening. At one point,
Mr. Savino felt a pop and a sharp pain in his right knee. Mr.
Savino went to the on-site nurse and was sent on to outside
care. On October 24, 2013, Mr. Savino presented to Nicholas
Zervos, M.D., with a chief complaint of right knee pain,
although he was also experiencing pain to a lesser degree in
his left knee. An application for benefits was completed and
Dr. Zervos listed the diagnosis as bilateral knee problems.
On November 22, 2013, the claims administrator denied the
claim stating that neither Mr. Savino nor Dr. Zervos had
described an occupational injury. The symptoms were
attributed to an exacerbation of preexisting conditions.
Savino continued to suffer knee pain and eventually underwent
an MRI of the right knee on January 10, 2014. The MRI
revealed a complex tear of the posterior horn of the medial
meniscus. On January 22, 2014, Mr. Savino sought treatment
from Christopher Vasilakis, M.D., a colleague of Dr. Zervos.
Upon examination, Dr. Vasilakis noted no right knee effusion
but stated there was mild crepitus. Dr. Vasilakis's
impression was that the right knee injury was work-related
and occurred when Mr. Savino was jumping off of the stool
multiple times to fix problems with the assembly line. Dr.
Vasilakis requested authorization for a right knee
arthroscopy for a partial meniscectomy and chondroplasty, if
needed. The procedure was subsequently performed under Mr.
Savino's private insurance on October 2, 2014. The
pre-operative and post-operative diagnosis was right knee
chondromalacia of the medial meniscal tear.
November 12, 2014, Mr. Savino testified in a deposition about
his employment and injury. Prior to his employment with Mylan
Pharmaceuticals, Inc., Mr. Savino sustained an injury to the
back of his knee when he was bitten by a dog. Mr. Savino had
also injured his lower back while in the Marine Corps.
However, Mr. Savino testified that prior to the instant
claim, he never had knee problems. Mr. Savino described the
injury, stating that it occurred during a shift at work where
he was jumping up and down from a platform that was two feet
off the ground. On one jump, he heard his right knee pop.
Both knees were hurting during the shift but only the right
knee popped. When he initially went to the doctor after the
injury, Mr. Savino was told that he had overstressed his
knees. However, an MRI showed torn cartilage. Mr. Savino
subsequently had surgery on October 2, 2014, and was off work
until November 9, 2014.
course of the claim, Mr. Savino underwent an independent
medical evaluation on January 22, 2015, performed by
ChuanFang Jin, M.D. Dr. Jin's impression was bilateral
knee pain; right knee medial meniscal tear, status post
partial meniscectomy; and chondromalacia, status post
chondroplasty in the right knee. Dr. Jin attributed the
entirety of Mr. Savino's problems to chondromalacia, a
softening of the cartilage of a joint. Dr. Jin explained that
the etiology for this condition could include trauma but also
non-traumatic causes such as degeneration in the knee,
commonly seen in middle age and elderly people. Dr. Jin
stated that stepping stools or steps are not a risk factor
for chondromalacia. Regarding the medial meniscal tear, Dr.
Jin stated that it was difficult to determine when it
occurred but noted that there was insufficient medical
evidence to relate the tear to the alleged injury as there is
no documented clinical finding suggestive of a meniscal tear.
She stated that a meniscal tear can be degenerative and it is
common in degenerative knees with or without trauma. Dr. Jin
opined that in Mr. Savino's case, the mechanism of
stepping on and off a stool did not appear to describe any
injury as it was not a traumatic incident. Dr. Jin noted that
Mr. Savino had been diagnosed with degenerative arthrosis, a
chronic and progressive disease, which is often asymptomatic
in its early stages. It was her opinion that this disease
progressed to the point that Mr. Savino became symptomatic
and required more frequent treatment, which Dr. Jin did not
attribute to his occupation.
March 31, 2015, the Office of Judges reversed the claims
administrator's decision denying the claim and found that
a preponderance of the evidence supported holding the claim
compensable. The Office of Judges noted that there was no
evidence showing that Mr. Savino suffered a prior injury to
his right knee. Further, Mr. Savino's description of the
injury was consistent with the symptoms reported. The Office
of Judges concluded that Mr. Savino gave a credible version
of how the injury occurred and the medical records are not
inconsistent with such a conclusion. Therefore, the Office of
Judges held the claim compensable for right knee injury. The
Board of Review affirmed the Order of the Office of Judges.
August 4, 2015, Mr. Savino requested that the claim be
reopened for temporary total disability benefits for the
period of October 2, 2014, through November 9, 2014, the
period following his knee surgery. Mr. Savino underwent an
independent medical evaluation performed by Victoria Langa,
M.D., on August 10, 2015. Dr. Langa stated that she was not
informed of any compensable conditions in the claim. Dr.
Langa diagnosed status post right knee arthroscopy with
presumed partial medial meniscectomy and patellofemoral
chondroplasty. Dr. Langa opined that Mr. Savino had
persistent symptomatic chondromalacia of the patella of the
right and left knee, which existed prior to the compensable
injury and was not work-related. The chondromalacia might
have occasionally been exacerbated by physical activities,
which is what Dr. Langa believed occurred on the date of the
compensable injury. Dr. Langa stated that this had long since
resolved and found Mr. Savino to be at maximum medical
improvement for chondromalacia of the patella. Dr. Langa
opined that the etiology of the medial meniscal tear was
Savino testified in a second deposition on October 28, 2015,
that on the date of injury he hurt his right knee from
jumping off of a stool and down onto a platform. Subsequent
to the injury, he was under medical care for a torn right
meniscus. An MRI revealed the tear in the right knee for
which Mr. Savino underwent surgery using his private health
insurance. Following repair of the tear, Mr. Savino was off
work for approximately five weeks from October 2, 2014,
though November 9, 2014. Mr. Savino testified that he
continues to have problems with his right knee. It sometimes
catches and he experiences pain with substantial use.
March 22, 2016, the Office of Judges affirmed the claims
administrator's decision denying the request to reopen
the claim for temporary total disability benefits. The Office
of Judges stated that the medical evidence does not support
reopening the claim. Neither Mr. Savino nor his treating
physicians have attempted to add a specific diagnosis to the
claim, leaving the sole compensable condition as a right knee
injury. The reopening application was based upon Dr.
Vasilakis's examination which was performed over nine
months after the compensable injury. Ultimately, the Office
of Judges concluded that this was an insufficient basis upon
which to base reopening the claim and for that reason it
denied the request. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed its Order on February 9, 2017.
review, we agree with the conclusion reached by the Office of
Judges and affirmed by the Board of Review. Neither Mr.
Savino nor his treating physicians have attempted to have an
exact diagnosis added to the claim. Both Dr. Jin and Dr.
Langa have attributed Mr. Savino's symptoms to
chondromalacia and have opined that the condition is
degenerative in nature and not related to the compensable
injury. Mr. Savino has failed to present sufficient evidence
suggesting that his surgery was performed to correct an
occupational injury and thus the request to reopen the claim
for temporary total disability benefits following the surgery
foregoing reasons, we 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 law, nor is it based upon a material
misstatement or mischaracterization of the ...