RIGHT OF WAY CLEARING & MAINTENANCE, INC., Employer Below, Petitioner
ROBERT TAYLOR, Claimant Below, Respondent
Appeal No. 2052990) (Claim No. 2013025731)
Right of Way Clearing & Maintenance, Inc., by Counsel
Toni J. Williams, appeals the decision of the West Virginia
Workers' Compensation Board of Review ("Board of
Review"). Robert Taylor, by Counsel Justin M. Raber,
filed a timely response.
issue on appeal is medical benefits. The claims administrator
denied authorization of an arthroscopic chondroplasty of the
right knee on July 6, 2017. On July 28, 2017, the claims
administrator denied authorization of a venous Doppler of the
right lower extremity and a return appointment with Kelli
Cawley, M.D. The Office of Judges reversed the decisions in
its May 18, 2018, Order and granted the requested treatment.
The Order was affirmed by the Board of Review on December 6,
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
Taylor, a carpenter, was injured in the course of his
employment on January 29, 2013, when he twisted his right
knee. The claim was held compensable for right knee sprain,
right knee cruciate ligament sprain, and sprain of the
lateral collateral ligament of the right knee. A November 23,
2015, treatment note from Marietta Memorial Hospital
indicates Mr. Taylor had a history of two right anterior
cruciate ligament repairs as well as a right knee cyst
excision. He reported that after the cyst removal, he
developed right calf and thigh pain as well as swelling. It
was noted that he was previously treated for similar
symptoms. A CT scan showed an extensive bilateral pulmonary
embolus with moderate ventricular strain. It was noted that
Mr. Taylor's brother has a similar history of deep vein
December 23, 2015, Mr. Taylor sought treatment from Marcia
McCullough, N.P. She indicated Mr. Taylor reported that he
underwent right knee surgery in October of 2015 and
subsequently developed extensive bilateral pulmonary embolism
of the right femoral vein. Umar Osman, M.D., a pulmonologist,
evaluated Mr. Taylor on January 6, 2016, and found that he
still had shortness of breath, headaches, and right leg
swelling. Dr. Osman stated that Mr. Taylor had a submassive
pulmonary embolism that developed due to surgery. He stated
that it was causing partial right heart strain. Dr. Osman
opined that Mr. Taylor's condition may become chronic and
recommended physical therapy. On January 5, 2017, Mr. Taylor
was treated by George Bal, M.D., for right knee pain and
instability. Dr. Bal noted that Mr. Taylor had already been
released to return to work. Dr. Bal found moderately reduced
range of motion in the right knee on examination. X-rays were
normal. Dr. Bal recommended an MRI.
Taylor was treated several times at Marietta Memorial
Hospital emergency department for his right leg. On January
23, 2017, he presented with right knee pain and swelling. A
venous Doppler/ultrasound showed a possible thrombus of the
right femoral and popliteal vein. He was given
anticoagulants. On February 10, 2017, Mr. Taylor was seen for
a swollen right leg. A venous Doppler showed a
nonocclusive/partial thrombosis of the right femoral vein.
Mr. Taylor returned on March 8, 2017, for right leg pain and
swelling. An ultrasound showed subacute or chronic
nonocclusive deep vein thrombosis. It was also noted that he
had a cyst on the right knee. On March 31, 2017, Mr. Taylor
was treated for right leg pain and swelling. He was again
diagnosed with chronic deep vein thrombosis.
Taylor was treated by Dr. Cawley on April 4, 2017, who
diagnosed recurrent right leg deep vein thrombosis. She
recommended he see a vascular specialist. An April 26, 2017,
treatment note by Gregory Krivchenia, M.D., indicates Mr.
Taylor had right leg swelling, pain and reduced range of
motion. Dr. Krivchenia stated that he may have underlying
arthritis of the knee secondary to his work injury. Dr.
Krivchenia diagnosed right knee meniscus injury and right
knee sprain. He recommended a menisectomy and chondroplasty
and stated that he believed arthritis was causing a lot of
Mr. Taylor's problems. On May 1, 2017, Mr. Taylor sought
treatment from Luke Marone, M.D., who diagnosed
post-thrombotic syndrome. He recommended Mr. Taylor continue
wearing compression socks and prescribed a venous Doppler.
Mr. Taylor returned to Marietta Memorial Hospital emergency
department on May 14, 2017, for right leg pain and swelling.
He had discontinued his anticoagulation medication the month
prior. An ultrasound of the right leg was negative.
Taylor began treating with Jeffrey Kann, M.D., on June 22,
2017. He reported that he was originally injured on January
29, 2013, and was subsequently diagnosed with an anterior
cruciate ligament tear. He underwent surgery on March 28,
2013, and was released to return to work on October 28, 2013.
In April of 2014, Mr. Taylor began noticing increased pain
and swelling in the right knee. An MRI showed a large cyst in
the right knee. He underwent anterior cruciate ligament
surgery on September 23, 2014. A diagnostic arthroscopy was
performed on March 17, 2015, and loose bodies in the joint
were removed. Mr. Taylor's right knee remained
symptomatic so an MRI was performed which showed mild
osteoarthritis and a cyst. Surgery was performed on November
6, 2014, to remove the cyst. Postoperatively, Mr. Taylor
developed recurrent deep vein thrombosis. Dr. Kann diagnosed
right knee osteoarthritis and post phlebitis syndrome of the
right leg. He opined that the diagnoses were causally related
to the compensable injury as they resulted from the
subsequent surgeries. Dr. Kann opined that Mr. Taylor does
not need a total knee replacement or any further surgeries.
He found that he could return to work with limitations.
July 14, 2017, letter, Dr. Krivchenia opined that Mr.
Taylor's MRI indicates he will require arthroscopic
evaluation and treatment and that the treatment was directly
related to his compensable injury. In a July 21, 2017,
supplemental report, Dr. Kann noted that Mr. Taylor's
brother has a history of deep vein thrombosis. Dr. Kann
stated that it was his opinion that Mr. Taylor developed a
deep vein thrombosis and pulmonary embolism as a result of
his compensable injury. He stated that the prior thrombosis
and family history places Mr. Taylor at a higher risk for
developing the subsequent and recurrent deep vein thrombosis.
Taylor returned to Ms. McCullough on August 14, 2017. The
treatment note indicates Mr. Taylor underwent an ultrasound
on June 15, 2017, which showed extensive chronic deep vein
thrombosis. Ultrasounds performed on June 28, 2017; July 14,
2017; and July 26, 2017, were negative. Ms. McCullough noted
that Mr. Taylor reported that his knee popped on August 14,
2017, which was possibly due to a cyst. Ms. McCullough
diagnosed recurrent right lower extremity deep vein
thrombosis and venous stasis with open ulcers. Mr. Taylor
testified in a hearing before the Office of Judges on March
8, 2018, that he had no symptoms of pulmonary embolism prior
to the compensable injury. He stated that he had not worked
since 2014. He had right lower extremity pain and swelling as
well as persistent right knee pain.
claims administrator denied authorization of an arthroscopic
chondroplasty of the right knee on July 6, 2017. On July 28,
2017, it denied authorization of a venous Doppler of the
right lower extremity and a return appointment with Dr.
Cawley. The Office of Judges reversed the decisions in its
May 18, 2018, Order and authorized the requested medical
Office of Judges found that the record indicates Mr.
Taylor's right knee surgeries, before he developed
recurrent deep vein thromboses, were authorized by the claims
administrator. Though no order of authorization was submitted
into the record, the medical records and arguments by the
parties indicate that the initial surgeries were authorized.
The Office of Judges next determined that though Mr. Taylor
has a family history of deep vein thrombosis, the medical
evidence indicates he developed the condition as a result of
surgery. The November 23, 2015, emergency department note
from Marietta Memorial Hospital states that his pulmonary
embolism and deep vein thrombosis developed as a result of
surgery. Dr. Osman stated on January 6, 2016, that Mr. Taylor
had a pulmonary embolism that was provoked by surgery. Dr.
Marone stated on May 1, 2017, that he underwent a cyst
removal that was complicated by a deep vein thrombosis.
Lastly, the Office of Judges noted that Dr. Kann opined on
July 21, 2017, that though Mr. Taylor's family history
increased his risk for deep vein thrombosis, the compensable
injury and subsequent surgeries caused the initial
thrombosis. The subsequent thrombosis was the result of the
prior thrombosis as well as his family history. The Office of
Judges therefore held that Mr. Taylor developed deep vein
thrombosis as a result of the compensable injury. The
requested treatment for the condition, a venous Doppler and a
return appointment with Dr. Cawley, was therefore authorized
as necessary medical treatment.
the request for an arthroscopic chondroplasty of the right
knee, the Office of Judges determined that Drs. Krivchenia
and Kann believed Mr. Taylor's right knee condition is
related to the compensable injury. Dr. Krivchenia stated that
he required the surgery due to underlying arthritis secondary
to the compensable injury. Dr. Kann stated that Mr.
Taylor's right knee symptoms were the result of the
compensable injury and subsequent surgeries. The Office of
Judges noted that the physicians disagreed on whether he
requires right knee surgery. The Office of Judges determined
that there was equal evidence on either side of the issue
regarding the need for arthroscopic knee surgery. When the
evidence is of equal weight, the issue is resolved in favor
of the claimant. Therefore, the right knee ...