RICHARD W. CROUSE, Claimant Below, Petitioner
JKM ENTERPRISES, INC., LWF, Employer Below, Respondent
Appeal No. 2051470, Claim No. 2011001248
Crouse requests the addition of osteoarthritis of the right
knee as a compensable component of his claim for workers'
compensation benefits. The claims administrator denied Mr.
Crouse's request on February 22, 2016. The Office of
Judges affirmed the claims administrator's decision on
August 2, 2016. This appeal arises from the Board of
Review's Final Order dated April 26, 2017, 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. 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, we affirm the decision of
the Board of Review.
Crouse injured his right knee while crawling under a house on
July 6, 2010, in the course of his employment with JKM
Enterprises. Mr. Crouse's claim for workers'
compensation benefits was held compensable for a right knee
sprain/strain on July 15, 2010. On July 26, 2010, a right
knee MRI revealed the presence of lateral and medial meniscus
tears. On September 24, 2010, Mr. Crouse
underwent a meniscectomy and chondroplasty to repair the
September 26, 2014, Mr. Crouse sought treatment with Pablo
Carpio, M.D., his primary care physician, for complaints of
right knee pain following an injury which occurred on
September 24, 2014. On October 2, 2014, Mr. Crouse sought
treatment at MedExpress for right knee pain following a
work-related injury which occurred several days prior when
Mr. Crouse twisted his right knee while descending a ladder.
He reported that he has occasionally experienced right knee
problems following the 2010 meniscus repair. Mr. Crouse was
diagnosed with a right knee sprain.
October 14, 2014, Robert Kropac, M.D., examined Mr. Crouse.
Dr. Kropac noted that he initially treated Mr. Crouse
following the July 6, 2010, injury. He further noted that Mr.
Crouse sustained an intervening injury approximately two
weeks prior. He noted that diagnostic imaging revealed the
presence of degenerative changes and diagnosed Mr. Crouse
with a recurrent medial meniscus tear. Dr. Kropac evaluated
Mr. Crouse for a second time on December 17, 2014. He noted
that a right knee arthrogram performed on December 10, 2014,
revealed severe articular cartilage loss in the lateral
compartment, subchondral cysts, and a new partial tear of the
lateral collateral ligament. He then opined that the findings
revealed via the arthrogram are related to the July 6, 2010,
injury and diagnosed Mr. Crouse with a right knee sprain
superimposed on meniscus tears and post-traumatic
degenerative arthritis secondary to the July 6, 2010, injury.
Dr. Kropac further opined that Mr. Crouse will require
ongoing maintenance care in relation to the July 6, 2010,
injury, with the possibility of a total right knee
arthroplasty. On December 29, 2014, Dr. Kropac completed a
reopening application in which he opined that the 2014 injury
amounts to an aggravation of the July 6, 2010, injury.
13, 2015, Mr. Crouse testified via deposition. He indicated
that following the July 6, 2010, injury but prior to the
September 24, 2014, injury, he experienced periodic swelling
and inflammation in the right knee. Dr. Kropac also testified
via deposition on May 19, 2015. During his testimony, Dr.
Kropac reiterated his prior conclusion that the 2014 injury
represents an aggravation of the July 6, 2010, injury.
Specifically, he opined that arthritis present at the time of
the July 6, 2010, injury has significantly progressed. He
also opined that the July 6, 2010, injury resulted in
articular changes, which have also progressed.
4, 2015, ChuanFang Jin, M.D., performed a records review. She
opined that diagnostic imaging along with the operative notes
from the meniscus repair performed in 2010 document the
presence of degenerative changes which pre-existed the July
6, 2010, injury. Dr. Jin then opined that an MRI performed
shortly after the June 6, 2010, injury, along with the
operative notes, verifies her conclusion that the
degenerative changes pre-existed the compensable injury
because degenerative changes are not visible via diagnostic
imaging or direct observation until the changes have been
present for several years. She further opined that the 2014
injury resulted in a trigger of the pre-existing degenerative
changes present in the right knee. Specifically, she noted
that diagnostic imaging performed in 2014 revealed an
increase in degeneration of the knee joint, which is
consistent with the known progression of degenerative
changes. Dr. Jin went on to state that Dr. Kropac's
attribution of the arthritic changes in the right knee to the
July 6, 2010, injury is scientifically incorrect given that
the degenerative changes revealed via MRI twenty days after
the injury developed over the course of several years.
Rebecca Thaxton, M.D., performed a records review on February
22, 2016. She opined that the diagnosis of right knee
osteoarthritis and/or aggravation of right knee
osteoarthritis should not be added as a compensable component
of the claim. Dr. Thaxton also noted that diagnostic imaging
performed in 2010 and the operative report document the
presence of pre-existing osteoarthritis. Additionally, she
noted that diagnostic imaging performed in 2014 revealed
severe cartilage loss with degeneration. Dr. Thaxton
therefore concluded that the osteoarthritic changes were
present early in the claim and are not compensable.
claims administrator denied Mr. Crouse's request to add
osteoarthritis of the right knee as a compensable diagnosis
on February 22, 2016. The Office of Judges affirmed the
claims administrator's decision on August 2, 2016. The
Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision dated April 26, 2017. On
appeal, Mr. Crouse, by Gregory Prudich, his attorney, asserts
that the evidence of record clearly establishes that
osteoarthritis of the right knee should be added as a
compensable diagnosis. JKM Enterprises, Inc., by Bradley
Crouser, its attorney, asserts that the diagnosis of
osteoarthritis pre-existed the compensable injury and,
therefore, cannot be added as a compensable diagnosis.
Office of Judges found that the evidence of record
establishes that Mr. Crouse's right knee arthritis
pre-dated the July 6, 2010, injury. Specifically, the Office
of Judges noted that the July 26, 2010, MRI and the September
24, 2010, operative report contain findings consistent with
the presence of significant degenerative disease.
Additionally, the Office of Judges relied upon Dr. Jin's
conclusion that Dr. Kropac's attribution of the arthritic
changes to the July 6, 2010, injury is scientifically
incorrect. The Office of Judges then found that Dr. Jin's
conclusion that the arthritis pre-existed the July 6, 2010,
injury is corroborated by the opinion of Dr. Thaxton.
Office of Judges then turned to our recent decision in
Gill v. City of Charleston, 236 W.Va. 737, 783
S.E.2d 857 (2016), in which we held:
A noncompensable preexisting injury may not be added as a
compensable component of a claim for workers'
compensation medical benefits merely because it may have been
aggravated by a compensable injury. To the extent that the
aggravation of a noncompensable preexisting injury results in
a discreet new injury, that new injury may be found
Syl. Pt. 3, Gill. The Office of Judges found that
aggravation of pre-existing osteoarthritis of the right knee
cannot be added as a compensable diagnosis in light of our
decision in Gill. Likewise, the Board of Review
evaluated the request to add osteoarthritis as a compensable
diagnosis in light of our decision in Gill, and
affirmed the reasoning and conclusions of the Office of
Judges. We also agree with the reasoning and conclusions of
the Office of Judges, as affirmed by the Board of Review.
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 ...