Appeal No. 2052402, (Claim No. 2015021433)
Kimberly Thomas-Blake, by Robert L. Stultz, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. WV Department of Health &
Human Services, by Lisa Warner Hunter, its attorney, filed a
issue on appeal is an additional compensable condition. The
claims administrator denied a request to add the left knee to
the claim on May 1, 2017. On June 30, 2017, it denied a
request to add left knee meniscus tear to the claim. The
Office of Judges affirmed the decisions in its December 20,
2017, Order. The Order was affirmed by the Board of Review on
May 25, 2018.
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,
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
Thomas-Blake, a child protective service worker, injured her
left ankle when she slipped and fell at her place of
employment on January 27, 2015. The Employees' and
Physician's Report of Injury, completed that same day,
indicates Ms. Thomas-Blake fell while exiting her place of
employment. She was treated at Charleston Area Medical Center
and diagnosed with an ankle fracture and pain in the
ankle/foot joint. A treatment note from Charleston Area
Medical Center indicates an ankle x-ray showed mild
degenerative changes of the medial compartment and minimal
patellofemoral degenerative joint disease. There was no
evidence of fracture or dislocation. Ms. Thomas-Blake was
diagnosed with oblique fibular fracture and referred to Aaron
Sop, D.O., an orthopedist. Dr. Sop completed a second Report
of Injury on February 2, 2015, in which Ms. Thomas-Blake
stated that she slipped on ice while exiting her workplace.
Dr. Sop completed the physician's section and diagnosed
left fibula fracture.
May 18, 2015, independent medical evaluation, Paul Bachwitt,
M.D., noted that Ms. Thomas-Blake reported injuring her left
hip, knee, and ankle/foot when she fell at work. He diagnosed
left hip sprain/strain, left knee sprain/strain, and left
distal fibula fracture. Ms. Thomas-Blake had not reached
maximum medical improvement and would not reach it until
after four more weeks of physical therapy. In a June 10,
2015, addendum to his report, Dr. Bachwitt stated that Ms.
Thomas-Blake had reached maximum medical improvement. He
found no ratable impairment since the left hip and left knee
ranges of motion were normal. The left fibular fracture
healed in good position and there was no residual impairment.
Thomas-Blake sustained a second injury on July 8, 2015. In an
Employee's and Physician's Report of Injury, she
indicated that she was walking to a printer at work when she
tripped over a box and injured her left knee and ankle. C.
Mendoza, M.D., completed the physician's section and
diagnosed left knee and ankle sprain. A treatment note from
Braxton County Memorial Hospital that same day indicates Ms.
Thomas-Blake underwent left knee and ankle x-rays which
showed mild degenerative changes of the knee and a healed
left ankle fracture. The claim was held compensable for left
August 24, 2015, treatment note by Joseph Snead, M.D.,
indicates he diagnosed a left ankle sprain and recommended an
MRI to rule out tendon damage. On September 10, 2015, Dr.
Snead noted that the MRI showed no tendon or ligament damage
but did show a possible nonunion of the fibula fracture. On
October 6, 2015, he noted that a CT scan showed that the
fracture was healed. He diagnosed left ankle sprain.
independent medical evaluation dated November 19, 2015, David
Soulsby, M.D., noted that Ms. Thomas-Blake reported that she
fell down six steps and injured her left leg, knee, and
shoulder. Dr. Soulsby diagnosed left ankle sprain,
osteoarthritis of the left knee, and bursitis of the left
shoulder. He found that she had not reached maximum medical
improvement and recommended an evaluation by Nick Zervos,
M.D., to determine if ligament reconstruction would be
necessary. If it was not, she would be at maximum medical
16, 2016, treatment note by Dr. Snead indicates Ms.
Thomas-Blake was seen for left shoulder problems. She
reported that the pain had persisted for two years with acute
onset. Dr. Snead diagnosed rotator cuff tendonitis and
rotator cuff sprain. He noted that x-rays of the shoulder
were normal. On March 22, 2016, Dr. Zervos saw Ms.
Thomas-Blake and diagnosed sinus tarsi syndrome. He
recommended an over the counter orthotic and an injection. On
April 8, 2016, Ms. Thomas-Blake stated that she had no pain
relief from the injection. A left knee x-ray showed mild
degenerative changes on May 16, 2016.
June 21, 2016, independent medical evaluation, Dr. Soulsby
diagnosed left ankle sprain with sinus tarsi syndrome. He
opined that the condition was related to the January 27,
2015, and July 8, 2015, injuries. Ms. Thomas-Blake had
reached maximum medical improvement and he assessed 1%
June 29, 2016, treatment note, Dr. Snead noted that Ms.
Thomas-Blake was seen for right knee pain. She stated that
she had pain in her knee for two years that gradually
worsened. She stated that she could not recall an injury but
that she may have injured her left knee when she broke her
ankle. Dr. Snead diagnosed degenerative joint disease of the
knee. On June 30, 2016, he requested left knee injections. On
August 2, 2016, he again requested left knee injections. Dr.
Snead requested the addition of left knee meniscal tear to
the claim on April 21, 2017. The claims administrator denied
a request to add Ms. Thomas-Blake's left knee to the
claim on May 1, 2017. It stated that Dr. Snead failed to
identify which knee he was requesting be added to the claim.
The claims administrator denied a request to add left knee
meniscus tear to the claim on June 30, 2017.
Thomas-Blake testified in a deposition on September 12, 2017,
that when she fell on July 8, 2015, she rolled her ankle and
landed on her left knee. She did not know if that fall
damaged her knee. She had problems with her left leg in
general since her January 27, 2015, injury. She underwent
surgery for a torn meniscus in the 1990s and a total right
knee replacement in 2009.
Office of Judges affirmed the claims administrator's
decisions denying the addition of left knee meniscus tear to
the claim on December 20, 2017. It found that Ms.
Thomas-Blake sustained an injury on January 27, 2015, when
she fell down some stairs and broke her ankle. During that
time, a left knee x-ray showed degenerative changes. On May
18, 2015, Dr. Bachwitt performed an independent medical
evaluation in which he diagnosed a left knee sprain/strain
and found that Ms. Thomas-Blake had reached maximum medical
improvement. Ms. Thomas-Blake sustained a second injury on
July 8, 2015, when she tripped over a box. She was seen by
Dr. Snead on August 24, 2015, and the Office of Judges
determined that the left knee was not a prominent part of the
treatment notes from that time until November 19, 2015, when
she underwent an independent medical evaluation with Dr.
Soulsby. Ms. Thomas-Blake underwent left knee x-rays on May
16, 2016, that showed nothing more than mild degenerative
changes. The Office of Judges determined that absent an MRI
showing a meniscal tear, the condition should not be included
in the claim. The left knee was not a major consideration in
Ms. Thomas-Blake's treatment for her January 27, 2015,
injury. Dr. Bachwitt found that she had reached maximum
medical improvement and Dr. Soulsby agreed. The Office of