Christopher Ryan v. Metalico, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
CHRISTOPHER RYAN, November 1, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-234 (JCN: 2020012197) OF WEST VIRGINIA

METALICO, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Christopher Ryan appeals the May 4, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Metalico, Inc. filed a timely
response. 1 Mr. Ryan did not file a reply. The issue on appeal is whether the Board erred in
affirming the claim administrator’s order, which denied the addition of hammer toes/claw
toes and toe ulcers to the claim. 2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On or about November 6, 2019, Mr. Ryan was injured while employed for Metalico
when an 8,000-pound beam fell and landed on his legs and feet. Emergency room records
indicate that Mr. Ryan sustained many fractures in his legs, ankles, and feet. Relevant to
this appeal, a CT scan of Mr. Ryan’s left lower extremity revealed an acute nondisplaced
intraarticular fracture of the cuboid at the fourth and fifth tarsometatarsal joints, an acute
nondisplaced intraarticular fracture at the second metatarsal base, acute displaced proximal
metadiaphyseal fractures of the third through fifth metatarsals, an acute nondisplaced

1
Mr. Ryan is represented by Patrick K. Maroney, Esq. Metalico is represented by
Steven K. Wellman, Esq., and James W. Heslep, Esq.
2
The Board also denied the addition of type 2 diabetes with diabetic polyneuropathy
to the claim and closed the claim for temporary total disability benefits. However, Mr.
Ryan does not appeal those aspects of the Board’s order. Additionally, although the
diagnoses update forms submitted below requested the addition of both hammer toes and
claw toes in the claim, the Board grouped the diagnoses together and Mr. Ryan uses them
interchangeably, as they appear to be synonymous.
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intraarticular fracture of the hallux proximal phalanx base, acute nondisplaced fractures of
the fourth and fifth phalanx bases, and plantar subluxation of the fourth proximal phalanx
base. X-rays of the left foot revealed fractures of the second through fifth proximal
metatarsals, a great toe proximal phalanges fracture, and an impacted fracture of the fifth
toe proximal phalanges base. X-rays of the right foot revealed fractures of the bases of the
fourth and fifth metatarsals.

By order dated November 18, 2019, the claim administrator held the claim
compensable for broken feet, tibia, and fibula. X-rays were repeated in December of 2019.
The x-ray of the left foot revealed progressive healing of the nondisplaced second
metatarsal and of the comminuted displaced fractures of the third through fifth metatarsals,
all without significant change in alignment. There was also progressive healing of the first
proximal phalanx base and the fractures of the fourth and fifth proximal phalanx bases.
There was an x-ray of the right foot as well, but the fifth metatarsal was not well visualized.
Progressive healing was suspected, however.

On June 14, 2021, Jeffrey Wilps, DPM, completed a Diagnosis Update form,
requesting that Type 2 diabetes mellitus with diabetic polyneuropathy and hammer toes of
the right and left food be added as compensable conditions in the claim. Dr. Wilps asserted
that Mr. Ryan’s toe was broken in the compensable injury, causing a non-healing ulceration
on the distal tip of the second toe on the left foot. Dr. Wilps further opined that the fracture
of the second and third toes caused them to become deformed and hammered. By order
dated August 3, 2021, the claim administrator denied the request to add these conditions to
the claim.

Mr. Ryan testified via deposition in February of 2022. According to Mr. Ryan, his
left foot was treated conservatively with no surgery. Mr. Ryan stated he had broken the
second and third toes of his left foot and that they had become deformed and rubbed when
he walked. Mr. Ryan denied having any problems with hammer toes prior to the injury and
attributed the hammer toes on his right and left foot to the compensable injury.

Subsequently, Ivan Tarkin, M.D., completed a Diagnosis Update form in May of
2022, requesting that left foot metatarsal crush injury/fractures, claw toes, and toe ulcers
be added as compensable conditions in the claim. Dr. Tarkin indicated that Mr. Ryan
sustained severe comminution of metatarsal fracture that had healed but resulted in
profound clawing of the tarsal/metatarsal.

Prasadarao Mukkamala, M.D., evaluated Mr. Ryan on July 8, 2022, and was asked
to provide an opinion as to the requested conditions in the Diagnosis Update forms. Dr.
Mukkamala noted that Mr. Ryan did have hammer toe deformities in both feet but opined
that they were not causally related to the compensable injury. Dr. Mukkamala further noted
that he had previously examined Mr. Ryan in March of 2021, sixteen months after the
injury, and that there was no evidence of any toe deformities. Dr. Mukkamala opined that,

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because Mr. Ryan had developed the deformities after he had reached maximum medical
improvement for the compensable injury, the deformities were not causally related to the
injury. Dr. Mukkamala instead attributed the toe deformities to degenerative conditions of
the metatarsophalangeal joint in both feet, which were seen on CT scans performed around
the time of the injury. Lastly, Dr. Mukkamala noted that Mr. Ryan fractured the fourth and
fifth toes on the left foot, but the deformities were in the second and third toes, which also
supported his conclusion that the deformities were not causally related to the injury.
Regarding toe ulcers, Dr. Mukkamala opined that because they were on the second and
third toes, they were attributable to the deformities in those toes rather than the
compensable injury. The claim administrator issued an order on August 24, 2022, denying
the request to add these conditions to the claim.

By order dated May 4, 2023, the Board affirmed the claim administrator’s orders
insofar as they denied hammer toes, claw toes, and toe ulcers to the claim. 3 The Board
relied on Dr. Mukkamala’s opinion that the toe deformities were not related to the
compensable injury. The Board noted that Mr. Ryan’s toe deformities appeared on both
feet when he fractured only the metatarsals in the left foot. 4 The Board further found that
the deformities occurred in the second and third toes whereas the fourth and fifth toes had
been fractured. Mr. Ryan also had hallux valgus in both feet, and CT scans from the time
of the injury revealed degenerative changes in the first metatarsophalangeal joint in both
feet, which can lead to hallux valgus. The Board found this evidence supported Dr.
Mukkamala’s findings that the toe deformities were unrelated to the compensable injury,
especially considering that Mr. Ryan developed the conditions in both feet. Likewise, the
Board found that the toe ulcers were not causally related to the compensable injury as they
were attributable to the toe deformities. Mr. Ryan now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

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The Board modified the order insofar as it added left foot metatarsal crush injury
to the claim, finding that the claim had already been held compensable for broken feet,
tibia, and fibula, which were broad and likely covered the requested condition. Out of
caution, the Board added the left foot metatarsal crush injury to the claim as the medical
records clearly supported compensability of the condition.
4
Contrary to this statement, finding of fact Number 5 in the Board’s order indicates
that x-rays of the right foot revealed fractures at the bases of the fourth and fifth metatarsals.
However, only the phalanges of the left foot were fractured. Because the Board provides
additional explanation for why the toe deformities are not causally related to the
compensable injuries, as set forth more fully above, we find that any misstatement by the
Board was harmless error.
3
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Mr. Ryan argues that the Board erred in denying the addition of claw
toes/hammer toes and toe ulcers to the claim. Mr. Ryan argues that both Dr. Wilps and Dr.
Tarkin found these conditions were related to the compensable injury, and the medical
records are absent of any foot conditions or treatment prior to the injury.

We find no merit in Mr. Ryan’s arguments. In order for a claim to be held
compensable under the Workers’ Compensation Act, three elements must coexist: (1) A
personal injury, (2) received in the course of employment, and (3) resulting from that
employment. Jordan v. State Workmen’s Comp. Comm’r, 156 W.Va. 159, 163, 191 S.E.2d
497, 500 (1972) (citation omitted). Here, the Board found that the toe deformities and toe
ulcers were not related to the compensable injury, and the evidence of record supports this
conclusion. Imaging studies performed after the injury revealed that only the great toe and
the fourth and fifth toes (phalanges) on the left foot were fractured in the injury. However,
the toe deformities developed on both feet, despite the fact that no toes on the right foot
were fractured, and they developed in the second and third toes, which were not fractured
on either foot. Neither Dr. Wilps nor Dr. Tarkin explained these discrepancies in their
Diagnosis Update forms. In contrast, Dr. Mukkamala explained that a CT scan performed
around the time of the injury revealed that Mr. Ryan had degenerative conditions in the
metatarsophalangeal joints and that the deformities were attributable to the degenerative
conditions. Further, the toe ulcers developed on the same toes that were deformed, meaning
they too were unrelated to the compensable injury. We find this evidence sufficient to
support the Board’s order denying the addition of these conditions and give deference to
its findings. See W. Va. Off. of Ins. Comm’r v. Johns, No. 21-0811, 2023 WL 3968686, at
*3 (W. Va. June 13, 2023) (memorandum decision) (“This Court may not reweigh the

4
evidentiary record, but must give deference to the findings, reasoning, and conclusions of
the Board of Review[.]”).

Accordingly, based on the foregoing, we affirm the Board’s May 4, 2023, order.

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating

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