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Atkins v. Beckley Raleigh YMCA

Supreme Court of West Virginia

April 25, 2019

CRAIG ATKINS, Claimant Below, Petitioner
v.
BECKLEY RALEIGH YMCA, Employer Below, Respondent

          BOR Appeal No. 2052632. (Claim No. 2012038982)

          MEMORANDUM DECISION

         Petitioner Craig Atkins, by Reginald D. Henry, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Beckley Raleigh YMCA, by Jillian L. Moore, its attorney, filed a timely response.

         The issue on appeal is the amount of permanent partial disability Mr. Atkins sustained as a result of the compensable injury. The claims administrator granted a 2% award on September 30, 2016. The Office of Judges affirmed the decision in its February 23, 2018, Order. The Order was affirmed by the Board of Review on July 20, 2018.

         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, 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 Procedure.

         Mr. Atkins, a grounds keeper, was injured in the course of his employment on May 11, 2012, when he fell while painting a soccer field. He sought treatment on May 23, 2012, at MedExpress and reported that he injured both knees, but only the right knee was painful. He was diagnosed with a knee sprain. X-rays of the right knee showed mild degenerative narrowing in the joint spaces and a small area of calcification. X-rays of the left knee showed mild narrowing of the joint spaces. The Employees' and Physicians' Report of Injury was completed that day and indicates Mr. Atkins was diagnosed with a right knee sprain after falling while painting a soccer field. A right knee MRI was performed on June 25, 2012, and showed early subchondral collapse of the medial femoral condyle, fluid in the pretibial bursa, and a complex tear of the medial meniscus. The claim was held compensable for right knee sprain/strain.

         Jerry Scott, M.D., performed an independent medical evaluation on January 28, 2014, in which he diagnosed bilateral degenerative disease with chondromalacia and a medial meniscus tear that were both degenerative and preexisting. He opined that Mr. Atkins had reached maximum medical improvement and assessed 0% impairment.

         In an Office of Judges' decision dated June 3, 2014, torn medial meniscus in the right knee was added as a compensable condition in the claim. The Order also noted that "[i]t is found that the overall record supports that the claimant did have a contusion of both knees which resulted in a compensable injury." Pursuant to the Office of Judges' Order, right knee torn meniscus was added to the claim on July 2, 2014. On July 21, 2014, bilateral knee x-rays showed degenerative changes in the medial compartment of both knees with joint space narrowing.

         Bruce Guberman, M.D., performed an independent medical evaluation on December 11, 2014, in which he diagnosed chronic posttraumatic strain and contusion of both knees and medial meniscus tear of the right knee. He opined that Mr. Atkins had 4% impairment for each knee for a total of 8% impairment. He further opined that no apportionment was necessary for the mild degenerative changes seen on x-rays because Mr. Atkins would have received no impairment based on those findings prior to the compensable injury.

         On January 16, 2015, H.R. Fleschner, D.C.C.R.P., performed an independent medical evaluation in which he diagnosed chronic posttraumatic strain of the right knee, right medial meniscus tear, and chronic posttraumatic sprain/contusion of the left knee. He assessed 4% impairment for each knee. Dr. Fleschner declined to apportion the impairment because Mr. Atkins had no preexisting history of knee pain, no medical history of knee conditions, and he was fully capable of performing his work duties and activities of daily living prior to the compensable injury.

         Prasadarao Mukkamala, M.D., performed an independent medical evaluation on May 8, 2015, in which he diagnosed bilateral knee contusions and preexisting degenerative arthrosis of the knees. He assessed 0% impairment for the compensable injury. Dr. Mukkamala opined that Mr. Atkins's ongoing complaints are due to his preexisting arthrosis.

         In an independent medical evaluation on September 28, 2015, Paul Bachwitt, M.D., diagnosed left knee sprain/strain and right knee sprain/strain superimposed on preexisting degenerative changes in both knees. He opined that the right knee meniscal tear was likely related to the compensable injury and assessed 0% impairment.

         The Office of Judges granted a 4% permanent partial disability award on December 11, 2015. The Board of Review reversed the decision in its May 11, 2016, Order and remanded the case for another impairment evaluation because there was no physician of record that recommended 4% impairment. It also found that none of the reports of record accurately assessed Mr. Atkins's impairment.

         Marsha Bailey, M.D., performed an independent medical evaluation on August 3, 2016, in which Mr. Atkins reported constant pain in both knees. Dr. Bailey noted that he had swelling and varicosities in both legs. His range of motion was restricted by discomfort. Dr. Bailey found that the area seen on x-ray as showing degenerative joint disease was the same area that was tender to palpitation on examination. She diagnosed bilateral knee contusions, possible sprain/strain of both knees, medial meniscus tear of the right knee, bilateral knee degenerative joint disease, and osteoarthritis. Dr. Bailey opined that the contusions, possible sprain/strain to both knees, and right meniscal tear were all related to the compensable injury. She determined that Mr. Atkins had reached maximum medical improvement and assessed 8% right knee impairment and 4% left knee impairment for a total of 12%. However, she apportioned 10% to preexisting, noncompensable degenerative joint disease, osteoarthritis, and obesity. The claims administrator granted a 2% permanent partial disability award on September 30, 2016.

         In an April 4, 2017, supplemental report, Dr. Guberman stated that he disagreed with Dr. Bailey's apportionment of 10% impairment to preexisting conditions. Dr. Guberman opined that her apportionment was inconsistent with Mr. Atkins's history of no prior knee symptoms and the fact that he had no problem performing his work and daily living activities prior to the compensable injury. Dr. Guberman concluded that ...


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